R v Van Wyk

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.