R v Van Wyk
[2018] SASCFC 138
•20 December 2018
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 accused gives sworn evidence that differs significantly from statements made on earlier occasions the existence of this inconsistency does not necessarily require caution before accepting the evidence of the accused, it is for the jury to determine whether the prior out of court statement made by the accused is inconsistent with evidence the accused has given and the significance of any such inconsistency to the jury’s assessment of the weight to be afforded to the accused’s evidence.
Crimes Act 1958 (Vic) s 61; Criminal Law Consolidation Act 1935 (SA) s 48(1); Evidence Act 1929 (SA) s 34M; Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) s 17, referred to.
R v Jones [2018] SASCFC 80, applied.
Crofts v The Queen (1996) 186 CLR 427; Kilby v The Queen (1973) 129 CLR 460; R v Copeland (1997) 194 LSJS 1; R v H, T (2010) 108 SASR 86; R v J, JA (2009) 105 SASR 563; R v Ong (2001) 80 SASR 537; R v Zorad (1979) 2 NSWLR 764, considered.
R v VAN WYK
[2018] SASCFC 138Court of Criminal Appeal: Kourakis CJ, Kelly, Lovell, Doyle and Hinton JJ
THE COURT:
Introduction
The appellant was tried on an Information alleging four counts of rape.[1] The complainant was MRC, a woman with whom he had shared a relationship which on the prosecution case had come to an end before the time of the rapes. The rapes subject of counts 1 and 2 occurred in January 2015, whilst those subject of counts 3 and 4 occurred in October of that same year. The appellant was acquitted of counts 1 and 2 but convicted by majority verdict of counts 3 and 4. He was sentenced to imprisonment for seven years and six months to be served cumulative upon the unexpired balance of a previous sentence in relation to which he was on parole, resulting in a total period of imprisonment of seven years, 11 months and eight days. The sentencing judge fixed a non-parole period of five years.
[1] Contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA).
The appellant now appeals with the permission of a single judge against both his convictions and sentence. With respect to his convictions he contends that the trial judge erred:
i.in the directions he gave to the jury regarding the use that may be made of evidence of complaint;
ii.in directing the jury that they must exercise caution before accepting the evidence of the appellant;
iii.in directing the jury that the third element of the offence of rape (knowledge of non-consent or recklessness thereto) was satisfied by proof of the actus reus of the offence.
In relation to his sentence appeal the appellant contends that it is manifestly excessive.
For the reasons that follow we would allow the appeal against conviction. In the circumstances it is unnecessary to consider the appeal against sentence.
The prosecution and defence cases
The prosecution and defence cases were both presented within the context of the appellant and complainant enjoying what may be described as a series of relationships since 2008 of differing levels of intimacy and commitment ranging at different times from the domestic to simple friendship.
At the time of the rapes subject of counts 1 and 2, January 2015, the complainant was living with the appellant in his house but, according to her, they were not in a relationship and she occupied her own bedroom. Around that same time, after returning from a six-week holiday in the Phillipines, the complainant began to look for alternate accommodation. The complainant described their relationship at this time as casual and friendly. Sometime after returning from the Philippines, the complainant noticed a change in the appellant’s behaviour — he became snappy, quick to anger and aggressive.
The allegations subject of counts 1 and 2 were said to have occurred on a weekend in January 2015, after Australia Day, in the early hours of the morning when the appellant came into the complainant’s room. For the purposes of this appeal it is unnecessary to refer to the detail any further save to state that the appellant denied raping the complainant in January 2015.
The complainant moved out of the appellant’s house in the third week of February 2015. She could not move out immediately after the January 2015 incident as it took her a while to find a place to live and when she did the house she ultimately moved into needed some repair. Prior to moving out she said her relationship with the appellant had changed — they were not as close and she did not want to speak much with him. Where the complainant said the relationship had ended in January 2015 but that they were still talking, the appellant said that whilst they did not live together from February 2015 they remained on friendly terms and continued to enjoy a casual sexual relationship right up until October 2015.
Counts 3 and 4 occurred on 4 October 2015 at the complainant’s home at Aldinga when she was awoken by the appellant who had banged on her window and asked to be let in. The complainant’s evidence was that no sooner had she let him in than he grabbed her in a bear-hug like manner. He told the complainant that he missed her. The complainant tried to get away and asked him to let her go. She got away from him and walked into the kitchen area of the house. The appellant followed her. He tried to grab her a second time. Eventually, he cornered her, he put his arm on her chest and attempted to pull her knickers down. The complainant told him to stop and kept pushing him away. She tripped and the appellant grabbed her and pinned her down on the floor in the living area of the house. With one hand on her stomach preventing her from getting up the appellant then started licking her vagina. The complainant’s legs were spread apart and she could not close them. The appellant then put more than one finger in her vagina — the complainant again told him to stop. She kept fighting, grabbing his ears and hair. He stopped and got up off her telling her that he could not get a “hard on”.
In the balance of her evidence the complainant explained how she took up a knife at one point, but was disarmed by the appellant; how she got her car keys, ran to her car and drove off; and how she returned to her home some time later only to be confronted yet again by the appellant. She managed to lock herself in her bedroom. The appellant told her to open her bedroom door, saying he would break it. He then said that he was leaving, and that he was “not going to stress about it”. The complainant stayed in her bedroom for a few hours, feeling “numb” and “scared” — it was around 10:30 or 11:00 am when she exited. The appellant had left by this stage.
The appellant denied that he raped the complainant on 4 October 2015 as alleged and denied that sexual intercourse of any description took place. He did not deny that he went to the complainant’s house, but said he was invited inside. He did not use force against her as she had described. He gave evidence of the complainant behaving strangely that provided an alternate explanation for her various actions.
The first ground of appeal
This ground of appeal complains of the trial judge’s treatment of the evidence of the delay on the part of the complainant in reporting the January 2015 rapes. The prosecution did not lead evidence of an initial complaint from the complainant. However, in cross-examination the following exchange took place:
QDo you agree that when you spoke to police on 6 October 2015 that you did not tell the police about the alleged rape that occurred in January 2015.
ANo.
QYou only told the police about what you alleged occurred on 4 October 2015.
ASorry, can you repeat the question please?
QDo you agree that you only told the police about the October allegation of rape with your first statement to police.
AYes, first statement.
QYou made no mention about the January 2015 rape, do you agree.
AYes.
QIt was when you provided a second statement to police on 18 October 2015 it was then that you told the police about the January 2015 rape, do you agree with that.
AYes.
QDo you agree that you told police, you told them in your second statement some days later that the January 2015 rape occurred in a time period before Australia Day, 26 January.
AYes.
QI think we heard evidence yesterday from you that it happened after Australia Day, is that correct.
ALook, I’m confused about the dates during that time but it happened around that third week of the month.
QWhat I suggest to you is that the alleged rape or the rape that is alleged to have occurred in January 2015 that you have described when you were living with Mr Van Wyk did not happen.
ASorry, I didn’t catch the last bit.
QI am suggesting that the allegation of rape, that is the rape that you say happened in January 2015 -
AYeah.
Q- simply did not happen.
AIt did happen.
On the back of this evidence defence counsel made the following submission in his address:
… [MRC] … told the police that the rape happened sometime in January before Australia Day. She could not be any more specific. She told you in evidence, ladies and gentlemen, that she thinks it may have happened after Australia Day. This is important, ladies and gentlemen, because according to … [MRC] … this would have been the last time she had sexual contact with the accused prior to the allegation of rape. It is said to have occurred several months later in October of this year.
You might think, ladies and gentlemen, it is a matter for you, that the date of the January rape would have been indelibly imprinted on her memory. It is a matter for you. She described to you what was on anyone’s assessment a horrible and heinous act of rape.
What is also very concerning, ladies and gentlemen, about the January 2015 allegation is that … [MRC] … for the first time ever mentioned this alleged rape to police two weeks after she had been reported and provided her statement to police about the alleged rape said to have occurred in October 2015.
Yet one can properly assume ladies and gentlemen on the prosecution case that the January rape was really the trigger for the irretrievable breakdown of that relationship and the prosecution invites you to accept that from January 2015 to the allegation of rape in October, the relationship between Mr Van Wyk and … [MRC] … was virtually non-existent.
At a later point in his address defence counsel returned to repeat the point which, in effect, was that if the January 2015 rapes were as heinous as the complainant said, then surely when she reported the October rapes she would have mentioned what occurred in January, unless, of course, her evidence was a fabrication.
The prosecutor complained to the trial judge pointing to s 34M(2) of the Evidence Act 1929 (SA) (the Evidence Act) and the prohibition on any suggestion or statement being made that a failure to make, or a delay in making, a complaint of a sexual offence was, of itself, of probative value in relation to a complainant’s credibility or consistency of conduct. The trial judge agreed that defence counsel had acted in breach of s 34M(2). He dealt with the issue in his summing up. He said:
I want to give you a specific direction in relation to a point that was made, and I am referring now to the time between the complaint, about the 4 October events and the complaint in relation to the January events.
No suggestion may be made to you that a delay in making the complaint, that is the delay by … [MRC] … making the complaint if the alleged sexual offence in January 2015, having regard to her credibility or consistency of conduct, irrespective of what you have heard in the addresses of counsel, that is the law. So any delay in making, in terms of your assessment of the evidence, and delay in the making of the complaint for example, two weeks after the first complaint, is not of any probative value in your assessment of the evidence.
The appellant contends that this direction erroneously removed from the jury any consideration of the significance of the delay in the making of the complaint. In addition to precluding consideration of defence counsel’s point, which defence counsel should not have made but the members of the jury may have thought of themselves, the direction also precluded the jury from having regard to the lapse of time between the alleged offending and the first complaint made by the complainant in evaluating the degree of consistency of the complainant’s conduct with the happening of the alleged assaults, and, therefore, the weight that should be accorded to her complaint in assessing the credibility of her testimony. The Director initially contended that the direction was implicitly authorised by s 34M of the Evidence Act but modified that position in the course of the hearing of the appeal. A coram of five judges was convened because the Director’s initial submission impugned the recent decision of this Court in R v Jones (Jones).[2]
[2] R v Jones [2018] SASCFC 80.
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.
In Kilby v The Queen (Kilby), Barwick CJ said:[5]
It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given.
[5] (1973) 129 CLR 460 at 465.
At the same time, however, the common law position was that the failure to make a complaint could never be used as evidence tending to show that the complainant had consented. In Crofts v The Queen (Crofts), Dawson J stated the position as follows:[6]
Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant. However, it does not necessarily do so, particularly where there is an explanation for the failure or delay. On the other hand, a recent complaint may be consistent with the truth of the evidence given by the complainant and so assist in establishing his or her credit. But that is as far as evidence of a recent complaint or lack of a recent complaint can go. It does not itself go to establish the facts of which the complainant gives evidence nor does it go to disprove those facts.
[6] (1996) 186 CLR 427 at 434.
Amendments were made to the Evidence Act and its interstate analogues in the decades following the decision in Kilby to prohibit directions of the kind mentioned by Barwick CJ in the last sentence of the passage from the Chief Justice’s judgment cited above. The purpose of that legislative reform was not to deny the jury the capacity to evaluate the credibility of a complainant by reference to the making of the complaint but to ensure that the judge’s directions explained to the jury the reasons why a complaint may be delayed.
In Crofts the High Court held that s 61(1) of the Crimes Act 1958 (Vic), [7] in prescribing aspects of a judge’s summing up, had not abrogated the common law rule that a judge, in an appropriate case, may still tell the jury that it could take into account a delay in evaluating the credibility of a complainant. Dawson J explained:[8]
The present s 61 was substituted for it in 1991 and sub-s (1)(a) reflects the distinction made in Longman. Clearly then, sub-s (1)(b), in requiring a trial judge to warn a jury that delay in complaining does not necessarily indicate that a complainant’s allegation is false and to inform the jury that there may be good reasons why a victim of sexual assault may hesitate in complaining about it, does not abrogate the rule requiring a judge to give a warning required in the interests of justice upon the particular facts of a case or preclude a judge from making a comment, including a comment upon delay in the making of a complaint, where he or she considers it appropriate upon the facts of the particular case to do so.
In R v Davies the New South Wales Court of Criminal Appeal considered s 405B(2) of the Crimes Act 1900 (NSW) which requires a trial judge to warn a jury, where there is a suggestion of lack of recent complaint, that it does not necessarily indicate that an allegation of sexual assault is false. The sub-section also requires the judge to inform the jury that there may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about the assault. There is no equivalent of s 61(2) of the Victorian Act, but the Court concluded that the New South Wales sub-section did not “codify the law relating to evidence of complaint” and did not relieve a trial judge from the obligation to give a direction to the jury, where fairness demanded it, “that the absence of a complaint or the delay in making one may be taken into account by it in evaluating the evidence of the complainant and in determining whether to believe her”. In R v Omarjee the Victorian Court of Criminal Appeal approved the remarks of the New South Wales Court of Criminal appeal in R v Davies. Of course, s 61(2) of the Victorian Act specifically provides for a trial judge to comment on the evidence where it is appropriate to do so in the interests of justice and this would include a comment upon a lack of recent complaint.
[footnotes omitted]
[7] 61. Jury warnings
(1) On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) (36) or under any corresponding previous enactment ...
(a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and
(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must—
(i)warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and
(ii)inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in complaining about it.
(2) Nothing in sub-section (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.
[8] Crofts v The Queen (1996) 186 CLR 427 at 435-436.
Further, Toohey, Gaudron, Gummow and Kirby JJ said:[9]
As the Victorian Court of Appeal pointed out in Miletic, no other approach to the construction of s 61 of the Act would be compatible with the approach of this Court in Longman. That decision makes it clear that the purpose of such legislation, properly understood, was to reform the balance of jury instruction not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses. It was simply to correct what had previously been standard practice by which, based on supposed “human experience” and the “experience of courts”, judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained about specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to “sterilise” complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts.
Had the Victorian Parliament intended to overrule the practice followed in Australian courts, at least after Kilby, s 61(1)(b) would have been expressed in much clearer language than appears. This view of the section is confirmed by the presence in it of s 61(2) and by the established construction of the equivalent section in New South Wales at the time the amendment to the Victorian Act was adopted in 1991.
[footnotes omitted]
[9] Crofts v The Queen (1996) 186 CLR 427 at 450-451.
In enacting s 34M of the Evidence Act, the South Australian Parliament did go further, and in the words of the plurality in Crofts, overruled past practices and immunised the complainant from critical comment by defence counsel and judges. A judge now must not make suggestions or statements of the kind proscribed by s 34M(2) and must give the directions prescribed by s 34M(4) of the Evidence Act.
While s 34M(2) immunises delay (of itself) from comment by the judge or by counsel, it does not sterilise the probative significance of delay in relation to the jury’s evaluation of the complainant’s credibility. Not only does it not do so expressly, the concluding words of s 34M(4) are best understood as leaving the significance of any delay to the jury to evaluate. At the very least those concluding words serve as a textual barrier to the implication that delay is not intended to have any probative force in relation to credibility. Consequently we agree with Jones that:[10]
The vice in such a direction [that delay suggests inconsistency] identified by Kourakis J was not that the jury was prohibited from taking into account the complainant’s delay in making a complaint adversely to her credibility but rather because the Judge was prohibited by subsection (2) from making a statement to that effect.
Kourakis J said:
Finally I observe that a trial judge must direct a jury that it is for “it” to determine the significance (if any) of the complaint evidence; any suggestion by a trial judge that the delay is so long that the complaint is not consistent with the allegation will tend to usurp the function that Parliament has entrusted to the jury’s, and not the judge’s, common sense.
On its proper construction, s 34M does not prohibit a jury from taking into account delay in making a complaint in assessing the complainant’s credibility. It follows that the Judge’s direction to the jury in the passage extracted at [105] comprised an error of law. The appeal must therefore be allowed unless the proviso can be applied.
[footnote omitted]
[10] [2018] SASCFC 80 at [127]-[129].
In R v J, JA, Duggan J made the following observations about the operation of s 34M:[11]
It was submitted that s 34M of the Act confined the relevance of a complaint to consistency and that it was a misdirection to tell the jury that it was relevant to “consistency and therefore credibility”.
In my view the reference to credibility in the summing up did not constitute a misdirection. Consistency of conduct is relevant to a consideration of the credibility of a complainant. In Suresh v The Queen Gaudron and Gummow JJ said:
[The complaint] is admitted not as evidence of the facts in issue, R v Lillyman [1986] 2 QB 167, but as evidence of consistency which buttresses the credit of the complaint: Kilby v The Queen (1973) 129 CLR 460 at 472 per Barwick CJ.
This was the position at common law, but it must also be so in the case of a complaint made admissible by s 34M. The principal relevance of the evidence remains that of consistency. This in turn constitutes a buttress to the evidence of the complainant. The trial judge’s use of language was appropriate: the jury were told that the evidence was relevant to consistency and “therefore the credibility of the complainant’s evidence”.
[footnotes omitted] [emphasis in original]
[11] (2009) 105 SASR 563 at [92]-[93].
In R v H, T, Kourakis J, as he then was, explained:[12]
The terms of s 34M(2) are clear. The proscribed suggestions and statements must not be made in a trial. The prohibition is not limited to a particular participant in a criminal trial. The subsection takes the passive form. It would be repugnant to the manifest purpose of the prohibition in subs (2) to limit it to counsel leaving the trial judge free to make such comment as he or she thought fit.
...
The context in which s 34M(2) was enacted also informs the meaning of s 34M(4). It is most evident in the closing clause of s 34M(4)(c). Plainly, the legislature has taken the view that the weight to be attached to the nature and timing of the complaint is a matter which can be properly and fairly assessed by modern juries without the “assistance” of counsel or judges. Parliament must be taken to have been aware of the warnings and comments sometimes given to juries on these matters. Section 34M evinces a clear intention that juries should not be burdened by such statements.
[12] (2010) 108 SASR 86 at [95], [99] and see also [105]-[107].
As has been seen, when first enacted s 34M(4)(a)(ii) of the Evidence Act did not include the words “degree of”. In R v H, T the absence of those words caused a difference of opinion in this Court as to the proper construction of s 34M(4)(a)(ii). In holding that s 34M(4)(a)(ii) should be construed as including the words “degree of” by implication Kourakis J, as he then was, explained that the making of a complaint, however late, is consistent with the happening of the alleged sexual assault particularly having regard to the contemporary understanding of the psychosocial sequelae of such assaults. He acknowledged that the making of a complaint may only be weakly supportive of a complainant’s credibility but that it was never inconsistent with it.
We pause here to observe that the reference in s 34M(2) to the failure to make a complaint is for practical purposes otiose and a remnant from when the admissibility of a complaint was dependent on it being a recent one. It is difficult to conceive of a scenario in which a complainant would come to be a witness without having made a complaint to someone, at the very least a police officer, however late that may be.
In Jones, the trial judge directed the jury that it was impermissible to reason “that because … [the complainant] … did not report sexual offending to the welfare authorities or to anyone else until she went to the police many years later, that that damages her credibility”.[13] That direction was the converse of the Kilby direction. It did not merely immunise delay from critical comment, it prohibited the jury from evaluating the effect on the complainant’s testimony for itself. On appeal this Court held that the direction was erroneous. The Court held:[14]
On its proper construction, s 34M does not prohibit a jury from taking into account delay in making a complaint in assessing the complainant’s credibility. It follows that the Judge’s direction to the jury in the passage extracted at [105] comprised an error of law. The appeal must therefore be allowed unless the proviso can be applied.
[13] [2018] SASCFC 80 at [104].
[14] [2018] SASCFC 80 at [129].
The Director contended on this appeal that Jones was wrong. The Court reconvened as a Court of five justices to determine that contention. The Director did not submit that the decision in Jones was made per incuriam, or that there was a manifest error in the Court’s reasons. The Director simply submitted that this Court should construe s 34M of the Evidence Act differently.
The Director contended that it is a necessary implication of the prohibition enacted in s 34M(2) of the Evidence Act that the jury itself must not take into account the delay in assessing the complainant’s credibility. The implication urged by the Director is one which reads words into s 34M in the sense that it would give to s 34M an operation that extends beyond the ordinary meaning of its text. The construction suggested is not the common one of reading down a statutory provision by giving its wide words a narrower meaning which more closely accords with the statutory intention. The implication urged by the Director would extend the section beyond its limitation on the contents of summings up and jury addresses to the use which the jury itself could make of the evidence.
Rarely do the principles of statutory construction allow a court to read words into a statutory provision in order to give it a wider operation than it would otherwise have. The reasons of this Court in Jones in paragraphs [109]-[129] explain why the implication cannot be drawn.
We make two additional observations. First, not only would one have expected, as this Court in Jones pointed out, the Parliament expressly to state such limitation on the use of complaint evidence but, if such a limitation were intended, Parliament could be expected to have expressly included a direction to that effect in s 34M(4) of the Evidence Act.
Secondly, the terms of s 34M(3) of the Evidence Act are premised on the jury taking into account delay and the reasons for it in evaluating the degree of consistency of a complainant’s conduct. That subsection renders admissible “evidence related to the making of an initial complaint” including evidence as to when the complaint was made and to whom, why the complaint was made to a particular person at a particular time, and why the alleged victim did not make the complaint at an earlier time. It follows that if evidence may be given in evidence-in-chief on those topics, then the complainant may also be cross-examined on them. It is illogical to contend that evidence of that kind may be given, but then not taken into account by the jury in evaluating the credibility of a complainant.
We observe here that the use of the word “probative” in s 34M(2) of the Evidence Act cannot mean probative of a fact in issue. Complaint evidence is plainly not probative of any fact in issue. It is admitted only on the question of credibility.
In any event, during the hearing of the appeal, the Director ultimately accepted that, in evaluating the degree of consistency of the conduct of an alleged victim, the jury may have regard to the lapse of time between the alleged conduct and the making of a complaint. That concession is plainly right, having regard to the mandatory direction that a judge must give pursuant to s 34M(4)(a)(ii) of the Evidence Act. There is no meaningful distinction between having regard to that lapse of time in evaluating the degree of consistency and, to use this Court’s expression in Jones, “assessing the complainant’s credibility”.[15] The direction in this case was that the jury could not have regard to that lapse of time at all contrary to the closing words of s 34M(4). On the Director’s concession, that direction was plainly wrong.
[15] [2018] SASCFC 80 at [105] (The Court).
During the course of the argument much was made of the fact that there was no satisfactory practical remedy for a breach by counsel of the prohibition contained in s 34M(2). Between the extremes of applying for a mistrial and referring counsel to a disciplinary body, it was virtually impossible to conceive of a direction that would correct the breach and not itself constitute a breach. That may be so, but we do not think it provides reason to doubt the application of the section as we have construed it above.
The second ground of appeal
In view of our conclusion regarding the first ground of appeal we can deal with the remaining two grounds briefly.
The second ground of appeal complains of the directions given by the trial judge in the course of dealing with prior inconsistent statements made by the appellant. The Judge said:
I need to give you some specific directions on a number of matters that arose in cross-examination of the accused yesterday. In cross-examination yesterday the accused was taken to his statement to police where he said that he was not aware of a knife and did not see a knife. That is the evidence that he gave in the interview which is on the disk which is Exhibit P7. In his evidence before you the accused said that whilst in the kitchen the complainant grabbed a knife, went outside, dug around in the front lawn and in some flowerpots. Mr Martin, for the prosecution, accused Mr Van Wyk of lying about that evidence. …
The judge then gave the jury a direction about the use of the lie, if indeed the jury considered that the appellant had lied. He then said:
I need to give you a second direction on what is described as prior inconsistent statements. There is evidence before you that the accused has made a statement out of court which is inconsistent, which is alleged to be inconsistent with the evidence that he has given to you in court. Whether it is or it isn’t is a matter for you.
I refer you to the evidence of the accused where he said that he gave the complainant a cuddle at the front door, tried to give her a cuddle in the kitchen but then lay down on the couch with her and cuddled her there. His evidence was that in the kitchen the complainant pushed him away. In his interview with the police, that is line 16 of the transcript, he said that he only gave the complainant a couple of cuddles and the complainant pushed him away and he didn’t do anything else. There was no mention of any cuddles on the couch.
The second piece of evidence in the police interview was that the accused told the police it was the complainant’s idea that they should go and look at her vegetable gardens. That is it was … [ MRC’s] … idea as a means of getting him out of the house but in evidence before you he told you it was he who brought up the idea of going and looking at the vegetable garden. That was a suggestion made between 5 and 6 a.m. in the morning and the complainant then saying words to him to the effect “You know where it is”.
The prior inconsistent statement of any witness in a criminal trial is not put before you for the truth of the facts which they purport to assert.
Rather, they are put before you to enable you to assess whether you can accept the evidence given on oath. The basic principle is that a case must be decided upon the evidence given on oath and subjected to cross-examination in court. What a witness has said out-of-court is not evidence in the case. Prior inconsistent statements go only to the reliability or credibility of the evidence given from the witness box in court. If a witness gives sworn evidence that is significantly different from the statements made on earlier occasions, a jury must exercise caution before accepting the sworn evidence of the witness. It will be for you to assess the significance of each inconsistency that you find proven. Does it touch upon an important issue in the case or is it peripheral or incidental? If it does touch upon an important issue, is there an acceptable explanation consistent with the witness’s sworn evidence being believable and reliable. Obviously enough the more significant the inconsistency the greater the risk that the sworn evidence will be unreliable.
If the witness denies or equivocates about statements made out-of-court, that may be a factor in assessing his truthfulness. Of course, you are entitled to take in account any evidence which you consider goes to support the evidence of a witness.
[emphasis added]
The appellant complains that the effect of this direction was that his evidence would not have been assessed by the jury in the same manner as any other witness. Rather the instruction italicised in the extract from the summing up reproduced above would have caused the jury to consider all his evidence from the starting point of it being suspect.
In R v Copeland Doyle CJ, with whom Millhouse and Bleby JJ agreed, said:[16]
In my opinion it was both appropriate and necessary for the trial judge to give the jury guidance in relation to the assessment of the accused as a witness. If nothing is said there is a danger that the jury might, in fact, discount the evidence of the accused simply because he was the accused, or for some other inappropriate reason. In principle, in my opinion it was appropriate to direct the jury to treat the accused like any other witness: Robinson v The Queen (supra). I cannot think of any better way of maintaining the right balance. It is desirable to give the jury an explicit warning, as the judge did here, against discounting the evidence of the accused because he is the accused. …
[underlining in original]
[16] (1997) 194 LSJS 1 at 7.
In R v Ong Mullighan J, with whom Bleby and Martin JJ agreed, considered that it was essential for a trial judge to provide guidance to a jury on how to assess the evidence of an accused where the accused had given evidence putting forward positive defences.[17] Not to do so risked the accused’s evidence being “discounted or disregarded or in some other way being given less weight than it deserved”.[18] The purpose of the direction is to combat any tendency to disregard or diminish the accused’s evidence on the basis of the interest he or she has in the outcome of the trial and the motive it provides to fabricate.
[17] (2001) 80 SASR 537 at [9]-[10].
[18] R v Ong (2001) 80 SASR 537 at [10].
In the present case earlier in his summing up, after dealing in some detail with the assessment of witnesses generally, the trial judge did advise the members of the jury that they were to assess the evidence of the appellant in “exactly the same way as with other witnesses”. And, “[i]t is for you to decide what weight you are prepared to attach to the evidence, but you are to bear in mind that by going into the witness box, he does not and has not assumed any burden of proof, the burden always remains with [the] prosecution in the way that I have already explained it to you”. The impugned direction had the capacity to undermine these directions. It is for the jury to determine whether a prior out of court statement made by the accused is inconsistent with evidence he or she has given in court and the significance of any such inconsistency to the jury’s assessment of the weight to be afforded to the accused’s evidence. It is not the case that if an accused gives sworn evidence that is significantly different from statements made on earlier occasions, a jury must exercise caution before accepting the sworn evidence of the accused. The jury should consider or have regard to any inconsistency, but the existence of such an inconsistency does not necessarily require caution before accepting the evidence of the accused. That might be the result, it might not. It depends upon the jury’s evaluation of the significance of the inconsistency to its assessment of the credibility and reliability of the accused. The same may be said for a prior inconsistent statement made by any witness.
In view of the decision we have reached on the first ground of appeal, it is unnecessary to determine whether the misdirection subject of the second ground of appeal amounts to an error of law or a miscarriage of justice. It was suggested that the direction was taken from a standard form generally used in this State. If that is correct, for the reasons we have given, it should no longer be used.
The third ground of appeal
The third ground of appeal complains of directions given by the judge touching upon the elements of the offence of rape. The directions complained of did not form part of that section of the summing up where the trial judge listed and explained the elements of the offence. It is not submitted that when he dealt specifically with the topic of the elements of the offence the judge erred. Rather, it is argued that subsequently at two points in his summing up the judge undermined what he had earlier said. The first inaccuracy is said to be contained in the following passage:
I now move to the aspect of inferences, ladies and gentlemen. If you take up the aid which I have given you which sets out the elements of the offences alleged against the accused and read it. I am addressing now the question of the prosecution being required to prove element 3 beyond reasonable doubt, that is that the accused knew that … [MRC] … was not consenting and the question of proof of that element beyond reasonable doubt. That element requires you to be satisfied of what was done by the accused.
Here the appellant latches onto the use of the word “done” and contends that it conflates proof of the mental element with proof of the physical element. The asserted misdirection was compounded, it was submitted, by the following further direction:
Then in relation to counts 3 and 4, you will see again that each of the questions that are set out are generally in the same form. You know that the accused denies that on any occasion on 4 October 2015 that he raped the accused [sic] as alleged, so you need to address question 1 and ask yourselves whether you are satisfied beyond reasonable doubt that the event of rape which is alleged, has in fact occurred.
The first passage marks the introduction in the summing up of guidance on the issue of drawing inferences. The judge was concerned to point out that the mental element for the offence was one that could not be proved by direct evidence. The aid to which the judge refers was an aide memoire that he had distributed to the members of the jury containing the elements of the offence of rape. Earlier in his summing up in dealing with those elements the judge related his directions to the aide memoire.
We reject the submission that in the last sentence of the first passage the judge conflates the mental and physical elements of the offence. The point the judge is making is that working through the elements of the offence as set out in the aide, which accorded with his earlier directions, the jury will only move to consider whether the requisite mental element (the third element in the judge’s aide memoire) has been proved beyond reasonable doubt if it is satisfied that sexual intercourse as defined occurred (the first element) and occurred without the complainant’s consent (the second element). As a matter of logic the judge was correct to observe that the jury would only need to consider whether the prosecution had proved beyond reasonable doubt that the accused knew the complainant was not consenting or was recklessly indifferent thereto, if the jury was first satisfied beyond reasonable doubt that sexual intercourse did occur and did occur without the complainant’s consent.
In the second passage the judge is referring to a second aide that he provided to the jury that he described as a question trail. The first question in the question trail for both counts 3 and 4 reflected the first element of the offence framed in terms of a question specific to the act of sexual intercourse alleged. Thus, in relation to count 3 the question was:
Has the Crown satisfied you beyond reasonable doubt that the accused engaged in sexual intercourse with … [MRC] … by performing an act of cunnilingus on her?
And as to count 4:
Has the Crown satisfied you beyond reasonable doubt that the accused engaged in sexual intercourse with … [MRC] … by inserting his finger in her vagina?
Question two of the question trail in the case of both counts 3 and 4 dealt with the second element, consent, whilst questions 3 and 4 in each instance, dealt with the alternate mental elements of knowledge and recklessness. The judge took the jury through the question trail in relation to each count. He did not stop at the first question. The second of the impugned passages quoted above is taken in isolation, as the appellant did, and without reference to what follows it. Where the judge refers to the “event of rape” it is plain he means sexual intercourse as referred to in question one of the question trail for each count, as was obviously to be understood in the light of the aide memoire setting out the elements of the offence of rape. The judge then took the jury through the remaining questions and, in effect, repeated his directions on the elements of the offence.
The third ground of appeal is not made out.
The proviso
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.
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