R v Wannan - [2006] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WANNAN
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice Anderson)
25 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION
Appeal against sentence - whether the trial Judge erred in admitting evidence of recent complaint in a rape trial - whether the trial Judge erred in directing the jury as to the evidence of recent complaint - whether the trial Judge erred in directing the jury as to the appellent's consumption of alcohol - whether the trial Judge erred in directing the jury as to consent - whether the conviction is unsafe and unsatisfactory - consideration of s 34I(1) of the Evidence Act 1929 - consideration of the directions of the trial Judge - no error of law - appeal dismissed.
Evidence Act 1929 (SA) s 34I(1), referred to.
Bull v The Queen (2000) 201 CLR 443, discussed.
R v Szejnoga (1998) 199 LSJS 97; R v Mustafa (2005) 91 SASR 62; Allingham (1989) 42 A Crim R 175; The Queen v De Angelis (1979) 20 SASR 288; The Queen v Byczko (1977) 16 SASR 506; The Queen v Gallagher (1986) 41 SASR 73, considered.

R v WANNAN
[2006] SASC 151
Court of Criminal Appeal: Doyle CJ, Besanko and Anderson JJ

DOYLE CJ: Mr Wannan appeals against a conviction on a charge of rape. He was found guilty by a jury after a trial in the District Court. His grounds of appeal raise a challenge to the admissibility of certain evidence given by the complainant, a challenge to some of the directions that the Judge gave to the jury, and a complaint that taken as a whole the summing up might have caused the jury to misapprehend the case, giving rise to a miscarriage of justice, and a further complaint that the verdict is unsafe and unsatisfactory.
Grounds of appeal
The first ground of appeal is a challenge to the correctness of a decision by the Judge to admit evidence from the complainant, exercising the discretion conferred by s 34I(1) of the Evidence Act 1929 (SA). The submission is that the evidence should not have been admitted.
Ground 2 challenges the directions that the Judge gave to the jury about the use of that evidence.
Ground 3 challenges the correctness of a decision to admit evidence from the complainant of a conversation that she had with a witness shortly after the alleged offence. The conversation was admitted on the basis that it was a recent complaint. The witness was also permitted to give his version of the conversation.
Ground 6 complains about the adequacy of the trial Judge’s directions in relation to this evidence.
Ground 4 raises a complaint about the Judge’s directions about the effect on Mr Wannan of alcohol that had been consumed by him on the day in question. The complaint is that the direction was wrong because it might have led the jury to think that if the effect of alcohol was to cause Mr Wannan to act in a manner in which he would not usually act, that invited or led to a conclusion that he knew the complainant was not consenting, or was reckless as to whether she consented or not.
Ground 7 is a complaint that the Judge erred in failing to direct the jury on the possibility that the complainant consented to the act of intercourse, believing mistakenly that the person performing the act was her boyfriend.
Finally, ground 5 complains that the verdict was unsafe and unsatisfactory. The submission is that the combined effect of the Judge’s misdirections is to give rise to a real risk that the jury misapprehended the issue before them, giving rise to a risk of a miscarriage of justice. The further submission is that in any event the jury, acting reasonably, could not have been satisfied beyond reasonable doubt of Mr Wannan’s guilt.
A single Judge refused leave to appeal on this ground. Mr Wannan asked that the application for leave be considered by the Court of Criminal Appeal.
The facts
On 10 April 2004 the complainant and her boyfriend Mr Noon went to a race meeting with Mr Wannan and his partner. The complainant had not met Mr Wannan before.
Each member of the group consumed a fair amount of alcohol during the day at the race meeting. The group returned to Adelaide by bus. The complainant vomited once or twice during the return journey.
During the course of the day an arrangement was made that Mr Noon and the complainant would stay for the night at Mr Wannan’s home. Mr Wannan and Mr Noon were friendly. Mr Noon did not think it was safe for him to drive, having regard to the amount of alcohol that he had drunk.
The group went to a hotel, not far from Mr Wannan’s home, and continued drinking. The complainant continued to feel unwell, and vomited two or three times. She asked Mr Noon if she could go home. She wanted to go to sleep.
As Mr Wannan’s home was close to the hotel, he offered to take her to his home and he did so. He took her by car. The complainant was sufficiently affected by alcohol for her to need some help from Mr Wannan when walking.
Mr Wannan then returned to the hotel, leaving the complainant at his home. She said that she removed all of her clothing except for her knickers, and then went to sleep in the bedroom that he had indicated to her as available for her use.
Evidence from other witnesses established that Mr Wannan returned to the hotel, but a short time later left again.
The complainant’s evidence was that she was asleep, and that the room was dark. She became aware that the bedcovers were no longer over her, she was lying on her back and her knickers were half way down her thighs, and she realised that someone was licking her vagina. She did not know who was licking her. She said she was “still very sort of dizzy”.
After a time that she described as about 20 or 30 seconds she realised that this was not her boyfriend Mr Noon, and so she sat up, pulled the bed covers over herself, and began crying. She saw Mr Wannan stand up and do his trousers up. He said, “Don’t tell the others”.
About then Mr Noon came to the house. He came into the bedroom. The complainant said she was “crying and shaking”. Mr Noon asked her a couple of times “What did he do to you”, but she did not answer. Then he said “Did he touch you”, and she said “Yes”.
There was then an angry sounding conversation between Mr Noon and Mr Wannan in a room adjacent to the bedroom.
Mr Noon then returned to the bedroom and had a further conversation with the complainant.
Mr Noon telephoned the police. They came to the house not long after.
The Prosecution case and the Defence case
The Prosecution case was that the complainant was asleep at the time when Mr Wannan began to perform the act of cunnilingus on the complainant. As the complainant was asleep she was not capable of consenting. On the Prosecution case the appellant woke while the act of cunnilingus was in progress. At first she thought the act was being performed by Mr Noon. When she realised it was being performed by someone else, she sat up, and Mr Wannan then stopped.
A finding by the jury that the complainant was asleep would have negatived any possibility of the complainant having consented. Of course it remained for the Prosecution to prove that Mr Wannan knew that the complainant was asleep or was recklessly indifferent as to that.
On the Prosecution case, to put it simply, the complainant was asleep, she never gave her consent, and Mr Wannan must have known she was asleep and was not consenting, or was recklessly indifferent as to whether she consented.
The Defence case was that the complainant had engaged in flirtatious behaviour in the course of the bus trip home. The details do not matter. This led Mr Wannan to believe that she might be interested in sexual activity with him. He said that when he returned to his house he decided to see if she was interested “in some sex”. He went into the bedroom, and saw the complainant lying on her side, with her back to him. Her back was exposed. He could see that she was wearing nothing other than underpants. He decided to “see if she was up for some sex”. He began rubbing her body. He asked her if she liked it, and she said that she did. She said “Yes”. He asked this because he “heard her moaning”. He described what happened then as follows:
I clearly thought that was the green light sort of thing and she rolled over on to her back. At that stage, as I was like rubbing her I was removing her underwear down her legs and then she rolled on to her back and then I moved out in front of her in between her legs and started to perform oral sex.
He was asked what the complainant was saying or doing while this was happening and he said:
She was moaning and she was also rubbing her hands through my hair and I asked her if she was liking it and she responded by saying “Yes”. I was asking her if she thought it was good and she said “Yes” to that as well.
He said that they then kissed passionately. He was still fully clothed, and began to undo his belt. He had just undone the buckle when the complainant said “We can’t do this”. He did his belt up. There was some further conversation, and then the complainant began to cry, and that was when Mr Noon arrived at the house.
Accordingly, the Defence case was that at all relevant times the complainant was awake, and consented to the sexual activity. As soon as she told Mr Wannan to stop, he stopped.
The Prosecution did not put its case on the alternative basis that the complainant was awake and consented to the act of cunnilingus, in the mistaken belief that the person who performed the act was Mr Noon.
Ground 1
During evidence-in-chief the Prosecutor led evidence from the complainant that she was menstruating on the day of the incident. When asked if she had ever had any form of sexual intercourse when menstruating, the complainant said “No, never”. When asked to explain that she said:
I wasn’t comfortable having any sex when I had my period.
When asked to explain why she said:
Just don’t feel like being touched, often you are in a lot of pain and just don’t feel like being touched at all.
Before the actual trial began the Prosecutor sought leave under s 34I(1) of the Evidence Act to lead this evidence. The Judge gave leave. On appeal it was argued that this evidence was not admissible, applying common law principles of admissibility, and without reference to s 34I. This point was not argued at trial. Mr Edwardson, counsel on appeal for Mr Wannan, also submits that the evidence was evidence of the kind referred to by s 34I, and that the Judge erred in granting leave for the evidence to be led.
I agree that the first issue is whether the evidence was admissible under the common law rules of evidence. Unless it was, there was no need to consider the application of s 34I.
The evidence was not relevant on the Prosecution case. The Prosecution case was that the complainant was asleep when the act of cunnilingus began, and so she was incapable of consenting. The circumstances under which she might or might not consent did not arise.
The evidence was relevant to the Defence case. It was relevant to the likelihood of the complainant agreeing to engage in sexual activity in the circumstances described by Mr Wannan. Her evidence, if accepted by the jury, could have led them to the conclusion that she would not have consented to the activity described by Mr Wannan. That could lead the jury to reject his version of the events.
The essence of the Defence case was that the complainant consented to Mr Wannan’s approaches, and by her conduct indicated consent to the act of cunnilingus. Alternatively, the Defence case was that the complainant’s behaviour caused Mr Wannan to believe that she was consenting. The Defence case embraced each of these approaches. The challenged evidence was relevant to the former aspect of the Defence case, because that rested on the complainant being conscious and agreeable to the conduct in question.
In that respect, the challenged evidence bore the same relevance as did evidence that the complainant had had so much to drink that she had been sick, was still unwell when she went to bed, was very tired, and had not met Mr Wannan before that day. That was evidence that might suggest to the jury that she would not have agreed to Mr Wannan’s advances. Evidence that she would not wish to engage in sexual activity while menstruating could be used in exactly the same way by the jury.
It is not necessary to revisit the details of the common law rules of evidence in their application to the evidence of a complainant in a rape case. Those common law rules were summarised by McHugh, Gummow and Hayne JJ in their reasons in Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 at [43]-[46]. The underlying principle was that if the issue of consent is raised, the complainant can be questioned on matters relevant to the issue of consent, and in particular relevant to the likelihood of consent having been given. Illustrations of this proposition can be found in The Queen v Byczko (1977) 16 SASR 506 at 520 Bray CJ, at 527 Hogarth J, at 538 King J; The Queen v De Angelis (1979) 20 SASR 288 at 290-292 King CJ; Allingham (1989) 42 A Crim R 175 at 177-179 Connolly J, at 185-188 Williams J and to the contrary at 182-184 McPherson J dissenting; R v Iwat [2001] EWCA Crim 1898 at [24]-[29].
Once counsel for Mr Wannan put his version of the events to the complainant, in cross-examination, the issue of her willingness to consent to sexual activity with Mr Wannan arose, and became open to evidence along the lines of the challenged evidence. Such evidence could have been elicited by the Prosecutor in re-examination.
In the circumstances of this case the evidence was admissible as evidence in chief. It was evident from the material before the trial Judge that the Defence case would be that the complainant consented to what Mr Wannan did, or acted in a manner that made him think she was consenting. In those circumstances it was appropriate, indeed desirable in my opinion, for the evidence to be led in chief.
If I am wrong in that, and the evidence became admissible only in re‑examination, in the event of the complainant not herself giving the evidence in cross-examination, the admission of the challenged evidence as evidence in chief was, on that hypothesis, an error of law but one of no practical significance. I am satisfied that no substantial miscarriage of justice could have occurred as a result of the evidence being given in chief, rather than being volunteered in cross-examination or brought out in re-examination. The evidence was relevant and admissible under the common law rules, and the fact that it came out as evidence-in-chief rather than in cross-examination or in re-examination was neither here nor there. It was not suggested on appeal that the Defence case would have been conducted any differently had the evidence not been led by the Prosecutor.
As the evidence was admissible under the common law rules, it is necessary to turn now to the application of s 34I of the Evidence Act. It is convenient to set out subsections (1), (2) and (3), as each of them is relevant to the point at issue. They provide as follows:
(1) In proceedings in which a person is charged with a sexual offence, no question shall be asked or evidence admitted—
(a)as to the sexual reputation of the alleged victim of the offence; or
(b) except with the leave of the judge, as to the alleged victim's sexual activities before or after the events of and surrounding the alleged offence (other than recent sexual activities with the accused).
(2)In deciding whether leave should be granted under subsection (1)(b), the judge shall give effect to the principle that alleged victims of sexual offences should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection and shall not grant leave unless satisfied that the evidence in respect of which leave is sought—
(a)is of substantial probative value; or
(b) would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim,
and that its admission is required in the interests of justice.
(3)Leave shall not be granted under subsection (1)(b) authorising the asking of questions or the admission of evidence the purpose of which is only to raise inferences from some general disposition of the alleged victim.
The origin of these provisions is well known. The common law rules had been applied so as to expose complainants alleging sexual offences to wide-ranging and distressing cross-examination about their sexual experiences, attitudes and morality.
The common law rules came to be seen as based on dubious and discriminatory assumptions. The result of their application was that complainants were treated unnecessarily, to humiliating exposure of otherwise private aspects of their life: see Bull at [47], [53] and [59]. The purpose of the legislation was to restrict the occasion for and the scope of the questioning of complainants about these matters. As can be seen, s 34I(1) identifies matters on which questions may not be asked at all, or other than with leave. Section 34I(3) identifies a topic on which leave may not be granted. Section 34I(2) identifies the criteria by reference to which the grant of leave is to be considered.
The South Australian legislation, unlike that in some other places, applies equally to evidence led by the Prosecution and by the Defence.
I proceed on the basis that the challenged evidence was given in answer to a question “… as to the alleged victim’s sexual activities before … the events of … the alleged offence …”. At first that might not seem obvious. However, the relevant question was a question as to the circumstances under which the complainant was prepared to engage in sexual activity. More specifically, the question was whether she was prepared to engage in intercourse when menstruating. That can be regarded as a question about complainant’s sexual activities.
The Prosecutor told the Judge that the complainant wished to give the evidence. Accordingly, the Judge was not required to allow for the adverse effects on the complainant of the giving of the evidence.
The challenged evidence was of substantial probative value. It was directly relevant to the likelihood of Mr Wannan’s version of events being correct. This evidence was central to the defence case. It would have been unjust to deny the complainant the right to answer Mr Wannan’s evidence on this point.
The fact that the Defence would find it difficult, and perhaps impossible, to test or rebut this evidence was of no particular significance. That was a result of the fact that the matter was largely within the knowledge of the complainant. That could not make it unjust to admit the evidence.
Any risk of the evidence being misused by the jury was to be dealt with by the Judge giving appropriate directions, a matter raised by ground 2.
Finally, I do not agree that this evidence was in the form of a self-serving statement, as submitted by Mr Edwardson. It was not evidence of that kind at all. Nor does it matter that the evidence is not conclusive on the issue of consent. I fail to see how that could matter at all. It was admitted as evidence bearing on the question of consent, and that was sufficient.

A further issue is raised by s 34I(3). If the challenged evidence falls within that provision, the Judge was not able to grant leave to the Prosecutor to lead the evidence. This point was not raised at trial or by the grounds of appeal. It was raised by the Court during argument.
Section 34I(3) reflects an assumption that evidence “as to the alleged victim’s sexual activities” will sometimes be relied on “only to raise inferences from some general disposition of the alleged victim” (emphasis added).
In Bull McHugh, Gummow and Hayne JJ considered West Australian legislation that bears some resemblance to s 34I. Referring to a discussion of the distinction between reputation and disposition they said at [58]:
The concept of disposition referred to in this passage obviously refers to a person's tendencies or propensities as things intrinsic to the individual in question which exist independently of other persons' opinions of those features. They are part of the character of the person so that given a relevant set of conditions or circumstances the person concerned has a tendency or propensity to act in a particular way. In contrast, the general opinion that others have of those features may constitute part of the person's reputation.
I consider that “disposition” is used in s 34I(3) in the same sense, and that it refers to evidence of sexual activities that reveal the intrinsic character of the complainant.
Evidence about a victim’s “sexual activities” will often disclose a disposition. Indeed, that will often be the reason why it is relevant. Evidence that a victim had intercourse with the accused almost daily prior to an alleged rape would suggest that she had a disposition to have intercourse regularly, and to have intercourse with the accused. In the context of a charge of rape to which the defence was consent, such evidence would have been admissible at common law and, one would think, was not intended to be excluded by s 34I.
As a matter of common sense s 34I(1) and s 34I(3) are to be read as requiring a line to be drawn between evidence about “sexual activities” that can be led, and such evidence that cannot be led because its purpose is “only to raise inferences from some general disposition of the alleged victim”.
It is obvious that it will not always be easy to draw that line. It would be unwise to attempt to expound a meaning of s 34I(3) that will cover all cases. I do not propose to do so.
However, clearly a significant aspect of s 34I(3) is the emphasis given by the word “only” and by the expression “general disposition”. These expressions suggest that the prohibition will operate when the “sexual activities” are not directly relevant to the case at hand, and are relevant only as establishing a “general disposition”, as distinct from a particular disposition relevant to the particular circumstances, to which the case at hand will then be linked. The expressions used also suggest that the prohibition in s 34I(3) will operate when the evidence is led to support what I would call “kind of person” reasoning, at a fairly high level of generality: cf Bull at [59].
In the example that I gave a moment ago, while the evidence might be said to disclose a disposition on the part of the alleged victim to have intercourse frequently, and to have intercourse with the accused, one would not readily refer to either of these as a “general disposition”, nor would one ordinarily describe the use of the evidence as involving “kind of person” reasoning. The evidence would be used to support an argument, relying on the fact of frequent consensual intercourse between the accused and the victim in the period preceding the alleged offence, that the victim had consented to intercourse on the occasion in question, or that the accused believed she had consented.
This can be contrasted with a case in which the evidence relates to regular or daily intercourse between the victim and her husband, but on this occasion the accused is not the victim’s husband. The purpose of evidence about the victim’s sexual activities with her husband would, in that setting, only be to support an argument that because she has sexual intercourse regularly with her husband she is the “kind of person” who is likely to consent to intercourse with other persons. That, to my mind, would involve an attempt to raise an inference from a “general disposition” of the victim, and to rely on a “kind of person” argument that was not engaged by or dependent on the facts of the particular case.
In the present case the challenged evidence can be said to disclose a disposition on her part, the disposition being not to engage in intercourse when menstruating. But this would hardly be called a “general disposition”. Nor is the evidence used “only” to raise an inference from a general disposition. The reasoning is not “kind of person” reasoning. The evidence is applied to the facts of the case at hand, because of the evidence from the complainant that she was menstruating at the time of the alleged act of intercourse.
For those reasons, and without attempting to identify in a universal way when s 34I(3) will operate, I am satisfied that the evidence in question does not fall within the statutory prohibition.
In my opinion ground 1 fails.
Ground 2
The manner in which the challenged evidence could be used was self evident, and hardly called for any explanation. The jury would have understood that if they accepted the evidence, they could use it to support the prosecution case that the complainant did not consent to intercourse on the occasion in question, as claimed by Mr Wannan.
Mr Edwardson submits that the jury needed to be warned that the evidence was not “conclusive” as to the fact of consent. I do not agree. The jury would have understood that. I cannot think of any reason why the jury would have thought that this evidence, even if accepted, was conclusive on the topic. In any event, one of the arguments put to the jury by counsel for the accused was that they might well think that the complainant’s evidence did not disclose an invariable practice, and that her behaviour on the occasion in question suggested that there were times when she was willing to engage in intercourse while menstruating.
Mr Edwardson also submits that the Judge inappropriately emphasised the point that the challenged evidence by the complainant was not challenged by Defence counsel. The Judge made that comment twice. Somewhat later in his summing up, when summarising the Prosecution case, he referred again to her evidence on this point, and said it was:
… an attitude which is perfectly reasonable and understandable, but one which of course might be difficult for the Defence to refute.
The issue here is whether the comments that the Judge made might have caused the jury to misapprehend the evidence, or resulted in the summing up being so unbalanced as to give rise to a miscarriage of justice. In my opinion they do not. I am confident that the jury would have appreciated the point that the Judge made, that there was not much the Defence could usefully do to refute such a statement. In the circumstances, the summing up on this point was fair.
For those reasons ground 2 fails.
Ground 3 and Ground 6
It is convenient to deal with these grounds together.
Mr Edwardson submits that the evidence of what the complainant said to Mr Noon, shortly after the incident, was wrongly admitted as evidence of a complaint by the complainant. He submits that, having regard to the circumstances, the relevant statement was not spontaneous, but was a response to persistent questions by Mr Noon. He submits that in any event it was not a complaint of wrong doing, and that it does not disclose consistency as between the complainant’s evidence as to the incident and the later complaint. Even if the evidence was admissible, he submits that the Judge’s directions in relation to this topic were inadequate, and failed to give the jury the necessary assistance.
To be admissible, the relevant statement had to have the capacity to demonstrate consistency on the part of the complainant: The Queen v Gallagher (1986) 41 SASR 73 at 76-79 King CJ; R v Szejnoga (1998) 199 LSJS 97 at 101-103 Doyle CJ; R v Mustafa [2005] SASC 66; (2005) 91 SASR 62 at [1] Debelle J, at [56]-[62] Besanko J. That requires that the statement express or imply a grievance, and that what is said is capable of demonstrating consistency. To be admissible it is also necessary that statements be spontaneous, but that does not mean that it cannot be the result of questioning: The Queen v Gallagher (1986) 41 SASR 73 at 77-78 King CJ; Szejnoga at 102-103 Doyle CJ. The ultimate question is whether the evidence has the capacity to enhance the complainant’s credibility by demonstrating consistency.
The evidence from the complainant was brief. I have set it out, almost in full, in my outline of the facts.
In the circumstances, the complainant’s statement to Mr Noon was a complaint. The conversation with Mr Noon occurred in circumstances suggesting strongly that sexual conduct had just occurred, involving Mr Wannan and the complainant. The fact that the complainant was sitting up in bed crying is a relevant factor. In the setting in which the statement was made, the complaint that Mr Wannan “touched” the complainant could be interpreted as referring to touching without her consent. It was not necessary that the complainant spell this out. It is true that she made this statement only after some moments, and after several questions from Mr Noon. But these were straightforward and direct questions, prompted by the circumstances. I consider that the statement was capable of being treated by the Judge as a spontaneous complaint, and accordingly was admissible. The fact that there are aspects of the evidence which lent reasonable support to an argument for the Defence, that the complainant’s behaviour was equally consistent with her regretting what she had agreed to do, having been discovered by Mr Noon, does not mean that the statement was not admissible.
Mr Noon also gave evidence on the topic. His evidence was more detailed than that of the complainant. He said that after he arrived at the house he spoke to the complainant, who was on the bed and crying, in the presence of Mr Wannan. He said “What’s going on here?”, directing the question to both of them. Neither of them answered. He repeated the question, and said that Mr Wannan said “Why don’t you ask her?”.
Then Mr Noon went into another room with Mr Wannan, where he challenged him more directly. He said that Mr Wannan said “I stuffed up” several times, and when asked if he had had intercourse with the complainant said again “I stuffed up”.
Mr Wannan’s girlfriend then came to the house, and there was some further conversation between the three of them.
Then Mr Noon went back to the bedroom and spoke to the complainant alone. The complainant was still crying. Mr Noon asked several times “What’s going on?”, and got no response other than “I want to go home”. The complainant said that several times, and then when Mr Noon said “Did he touch you?” once more, the complainant said “I thought it was you”. Mr Noon said “So did you consent?” and the complainant said “No I thought it was you”. That was when Mr Noon telephoned the police.
I consider that this evidence was admissible. Plainly the complainant’s statements contained an allegation that Mr Wannan had engaged in some form of sexual activity without the complainant’s consent. The statements were made shortly after the incident in question. Granted, they were made in response to a series of questions but that does not render the statement inadmissible. The questions Mr Noon asked were obvious and simple questions. The answer was not suggested to the complainant, nor extracted from her.
Once again, it is evident that there are aspects of this evidence that might be used to support a conclusion that the conduct of the complainant supports the Defence case. But that was a matter for the jury, provided that the evidence was admissible. The submission by Mr Edwardson fails to acknowledge that the evidence had the capacity to demonstrate spontaneity and consistency.
I turn now to the directions that the Judge gave.
The Judge introduced the topic by telling the jury that there were “special rules” about evidence of a complaint. He said:
The evidence of what she has said, to the extent that you find it to have been said by her, is to be used by you only for the limited purpose of showing the consistency of that conduct or otherwise with her evidence. It is not to be used as any evidence of guilt.
He then reminded the jury of the evidence given by the complainant and by Mr Noon, and in the course of doing so reminded them that the evidence could be used only as evidence of consistency, and not as evidence of the truth of what she said. He reminded the jury about that on two later occasions. Later he fairly outlined the Defence submissions in relation to this evidence, and in the course of doing so reminded the jury again that the evidence could be used only to show consistency. And later again the Judge once more summarised the Defence submissions on this evidence.
Mr Edwardson submits that the Judge should have told the jury that the evidence could not, or at least did not demonstrate consistency on the part of the complainant. I disagree. The issue is one for the jury, and the responsibility of the Judge was to identify sufficiently the opposing arguments, by reference to the evidence. The Judge did that. I agree that the initial direction by the Judge, that I set out above, was not sufficient. In particular, the glancing reference to consistency or otherwise did not adequately explain the Defence case on the point. But the Judge rectified that later.
I do not agree that the jury would have had any real difficulty dealing with this evidence. They heard evidence, from a number of witnesses, as to a series of conversations that occurred after Mr Noon arrived at the house. As described by Mr Noon there was conversation involving Mr Noon, the complainant and Mr Wannan, then a conversation between Mr Noon and Mr Wannan, Mr Wannan’s girlfriend joining the conversation when she arrived, then a conversation between Mr Noon and the complainant only. It would have been clear to the jury that the relevance of these conversations was the light that they threw on what had just happened at the house. As long as the jury had explained to them, as they did, that from the Prosecution point of view the complainant’s statements could do no more than establish consistency on her part, it was sufficient thereafter for the Judge to remind the jury of the submissions to them about how they should assess this evidence. The Judge did that.
Ground 4
I reject the complaint about the Judge’s directions relating to the effect of alcohol on Mr Wannan. The Judge dealt with the effect of alcohol on the complainant and on Mr Wannan, and at some length. He made the usual points. He explained that alcohol might have affected their memory of events. He explained that alcohol might have caused them, at the time of the events, to misunderstand or misperceive the significance of the conduct of others. He told the jury that alcohol might have caused Mr Wannan to behave in a manner in which he would not behave when sober. These were obvious points, and were properly raised.
There is no reason to think that what the Judge said might cause the jury to jump to the conclusion that Mr Wannan, affected by alcohol, decided to have intercourse whether or not the complainant was consenting. The jury would have understood that what was being put to them were merely matters for their consideration.
Ground 7
Mr Edwardson submits that there was evidence before the jury on which it was open to them to conclude that when Mr Wannan began caressing the complainant she was awake, or then awoke, and that she consented to what followed, because she believed that it was her boyfriend Mr Noon who was caressing her, and did not realise it was Mr Wannan. This submission was based on several things said by the complainant after the incident, including things she said to a police officer who came to the scene. Aspects of what she said were, it is submitted, indications that she was aware of what was happening, and thought that it was Mr Noon.
If the jury thought that that was a reasonable possibility then, unless Mr Wannan knew that the complainant was mistaken, or was reckless as to that, a not guilty verdict would be the appropriate verdict.
During the course of the directions to the jury, and at the end of the summing up, counsel for Mr Wannan at trial raised with the Judge the question of a direction to the jury in relation to mistaken identity. The matter was canvassed by both counsel. At the end of these submissions the Judge indicated that he was prepared to give a direction along the lines suggested, in view of the fact that both counsel were agreed, but provided the Judge could be satisfied that there was evidence before the jury on which this issue arose. It was at that stage that counsel for Mr Wannan withdrew the request. She acknowledged that there was nothing in Mr Wannan’s evidence to support this approach, and that the issue arose only on the basis of certain things said by the complainant, that might be inconsistent with her testimony. She expressed a concern that a direction on this topic might give the jury an alternative route to guilt that would not otherwise arise. That is, the jury might accept that the complainant consented, but find that she did so only because of a mistake, and find that Mr Wannan was aware of the mistake.
The matter was not further pursued, and the direction was not given.
The Defence case rested on a claim that the complainant was awake and consenting to Mr Wannan’s advances, or at least appeared to be. There was no evidence to suggest that, if the complainant consented or appeared to consent, she did so thinking that it was Mr Noon, except for certain things that the complainant said after the event. And they were by no means necessarily supportive of a mistake of identity. On one view they reflected nothing more than a degree of confusion on the part of the complainant, no doubt attributable to the effect of alcohol and to the circumstances in which she found herself when she woke up. On the other view, the Defence approach, the statements could be taken to suggest that the complainant had agreed to what occurred, because she thought the other party was Mr Noon. To the extent that there was any factual basis for the point, it rested entirely on these statements, and, I suppose, on the fact that the events in question happened in a darkened room.
I doubt whether the issue really arose. The hypothesis was inconsistent with Mr Wannan’s evidence, especially with his evidence of what the complainant said to him.
If the Judge had given the suggested direction, it would have been appropriate and necessary for him to direct the jury that if they were satisfied that Mr Wannan knew that the complainant believed or might believe that the person in question was Mr Noon, or was reckless as to that, they could find him guilty even though the complainant was awake and was consenting. The Prosecution case, for obvious reasons, had not been put that way. It would have been confusing, and potentially unfair to Mr Wannan, to introduce this alternative approach at such a late stage. The case had been fought on the issue of consent or the appearance of consent, and the suggested direction would have introduced a completely new element into the case. And it was an element that had a significant potential disadvantage for Mr Wannan. As well, he had the benefit of a direction from the Judge to the jury that if a statement she made, to the effect that she thought it was her boyfriend, was inconsistent with the lack of consent, that might suggest that her evidence that she did not engage in intercourse while menstruating was not reliable. Thus, in an indirect way, and favourably to Mr Wannan, the possibility of a mistake was raised without the jury being told that they might nevertheless convict.

My view is that the issue of mistaken identity did not fairly arise on the evidence. However, if I am wrong in that, the Judge was entitled to act on the request by Defence counsel that the direction not be given, because the case had been fought on the issue of consent or the appearance of consent, and there was a potential for substantial prejudice to Mr Wannan, recognised by his own counsel, had the direction been given thus raising the issue for the first time.
I would reject this ground.
Ground 5
I have considered the case as a whole. The summing up contained no error of law, and was fair to the accused. There was nothing inherently improbable or unlikely about the Prosecution case. Indeed, circumstances do suggest that the complainant would have been unlikely to have consented to the advances of Mr Wannan, under the circumstances. The Defence case was an arguable one. There were aspects of the evidence that might have caused the jury to have a reasonable doubt. But, on the evidence before them, it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt.
Conclusion
For those reasons I would dismiss the appeal.
BESANKO J: In my opinion, this appeal should be dismissed. I agree with the reasons for judgment of the Chief Justice and there is nothing that I can usefully add.
ANDERSON J: In this matter I have read the draft reasons of Doyle CJ. His Honour sets out the grounds of appeal and deals with each ground in turn. I agree with his Honour’s conclusions and with his reasons in relation to all of the grounds of appeal except Grounds 3 and 6. I would allow the appeal on these grounds.
Grounds 3 and 6 of the amended notice of appeal relate to the “complaint”. Ground 3 complains of the admission into evidence of a conversation between the complainant and her boyfriend, Mr Noon, shortly after the alleged offence. The trial Judge admitted evidence of the conversation because he considered it to be a recent complaint.
Ground 6 complains that the directions given by the trial Judge on the “recent complaint” were deficient. In particular:
(a) how the “complaint” if accepted was capable of being used as evidence of consistency;
(b) by failing to identify the issues that arose on the evidence that suggested that there was no “recent complaint”.
The Chief Justice deals with the relevant sequence of events in his summary of the facts. I will set out some of the evidence of Mr Noon as it appears in the appeal books because I think that this evidence supports the appellant’s submissions.
The appellant argued that the conversation between the complainant and Mr Noon did not amount to evidence of a recent complaint for reasons set out in the written outline of argument presented by the appellant.
The appellant argued that:
1There was a lack of spontaneity;
2The responses by the complainant to direct questions from Mr Noon were accompanied by inducements held out by Mr Noon;
3The complainant did not voluntarily identify exactly what it was that had occurred;
4There was an inconsistency between the complainant’s statements in her declaration with that of Mr Noon as against the account given to her boyfriend.
The appellant argued that there was no consistency which could be demonstrated by the relevant statements. It was submitted that the complainant’s words to Mr Noon after the event could not bolster her credibility and therefore, the evidence was not admissible.
The respondent argued that the threshold test was whether the words of the complainant had the capacity to show consistency and therefore, the potential to enhance her credit. It was argued that it was then a question for the jury as to whether in fact the complaint did enhance her credit.
In examination-in-chief the complainant said that she became aware of someone licking her vagina and discovered that it was not her boyfriend. She testified that she immediately sat up and grabbed the bed covers to cover herself. She went on to state that after she had sat up and grabbed the covers the accused stood up and she heard him do up his belt and trousers and then leave the room.
I have decided to set out in some detail the actual evidence given by both the complainant and her boyfriend so that the “complaint” can be looked at in the context of the submissions made by the prosecution.
In relation to the sequence of events which followed, the following questions and answers occurred:
Q.You have also just mentioned that Darrin came back to the house, how did you first become aware that Darrin had come back.
A.I could hear his voice.
Q.How long after the accused had left the bedroom did you hear Darrin’s voice.
A.Virtually straightaway.
Q.Did you hear the front door open or close or anything like that.
A.No.
Q.Could you make out what Darrin was saying or the accused was saying.
A.No.
Q.Then what happened from there.
A.Darrin came into the bedroom and sat on the bed with me and said ‘What happened?’.
Q.Did you turn the light on before this.
A.Yes.
Q.What sort of condition were you in by this stage.
A.I was hysterical, I was just crying and shaking.
Q.When he asked you did you respond.
A.Not straightaway.
Q.Just tell us how the conversation unfolded from there.
A.He said ‘What did he do to you?’. He said that a couple of times and I didn’t answer and he said – Darrin said ‘Did he touch you?’ and I said ‘Yes’, then he went back out of the room.
Q.How long do you think he was in the room with you for before he went back out.
A.A minute.
Q.What did you hear or see happening outside of the bedroom after Darrin left.
A.Yelling.
Q.Could you make out whose voices.
A.Darrin’s mainly.
Q.Could you hear what he was yelling.
A.Yes.
Q.What was he yelling.
A.He said – just saying ‘What happened? What happened? Did you fuck her?’.
Q.Did you hear the accused’s reply.
A.No.
Q.Did you hear his voice at all.
A.Yes.
After a divergence from that topic, the sequence of questions and answers continued:
Q.Just going back to where we left off, you told us that Darrin then went outside and you heard this exchange between him and the accused. What happened from there.
A.Darrin came back into the room and I was still sitting on the bed with the covers, I think somebody went and got me some tissues, I think it might have been Darrin, and then Chantelle came in.
Q.During that time what were you doing.
A.Just sitting on the bed, crying.
Q.Where was the accused.
A.Out in the lounge room.
Q.So when Chantelle came into the bedroom you were in there with Darrin.
A.Yes.
Q.Was the accused in there.
A.No.
Q.Were the police called.
A.Yes.
Q.Can you explain how that came about.
A.Darrin called them on his mobile when he was sitting next to me.
The complainant was then cross-examined specifically about a conversation she had with the accused after his mobile phone rang. The following is the evidence of the complainant in cross-examination:
Q.You said, I suggest, to Mr Wannan ‘Are you going to get that?’ when his phone rang.
A.Yes, I remember that.
Q.And he said ‘No’.
A.Yes.
Q.That’s right. Then you said ‘What are we going to tell Darrin and Charmaine?’
A.I think I said ‘What are you going to tell them?’
Q.I suggest that the words were ‘What are we going to tell Darrin and Charmaine?’
A.I don’t remember saying that.
Q.But you remember something along those lines.
A.I do now, yes.
Q.And he said ‘We don’t have to tell them anything’, does that ring a bell.
A.No.
Q.You would say that he said ‘Don’t tell the others’.
A.Yes.
Q.The next thing that happens, isn’t it, that Darrin is on the doorstep, he had come home.
A.Yes.
Q.Almost immediately.
A.Yes.
Q.Indeed not long after that missed call on your mobile from him.
A.Yes.
Q.You knew that the Glynde pub was only five minutes away from Mr Wannan’s unit.
A.Yes. He felt that there was something wrong.
Q.Even though you couldn’t hear the exact words, you heard a confrontation between Darrin and Mr Wannan, didn’t you.
A.Yes.
Q.Really heated, wasn’t it.
A.Yes.
Q.Lots of yelling.
A.He was very upset.
Q.I suggest to you that Darrin was yelling at Mr Wannan asking him what the hell was going on.
A.Yes.
Q.And he said to Mr Wannan ‘Did you fuck her?’
A.Yes.
Q.And Mr Wannan said that he performed oral sex on you.
A.I didn’t hear that.
Q.And he also said that ‘It was both of us, not just me’.
A.I didn’t hear that.
HIS HONOUR
Q.When the yelling was going on between them was that in the lounge room.
A.Yes.
Q.You could hear some of it from the bedroom.
A.You could hear the voices.
Q.Raised voices.
A.Yes.
XXN
Q.I suggest to you that Mr Wannan also said that he had stuffed up.
A.Yes, I think so, yes.
Q.That he had stuffed up because he had fooled around with you.
A.Yes. Darrin was talking louder, could I hear him better.
Q.Darrin was very angry, wasn’t he.
A.Yes.
Q.Darrin was a work colleague of Mr Wannan’s.
A.Yes.
Q.After the yelling between them, Darrin came back in to talk to you.
A.Yes.
Q.Didn’t he confront you and say to you ‘How can you do this to me?’
A.Yes.
Q.Do you remember what you said to him in response.
A.I think I said ‘I didn’t do it’.
Q.Didn’t you say ‘I thought it was you’.
A.I can’t remember that.
Q.I suggest to you that that’s what you said to him ‘I thought it was you. I thought it was you’.
A.That’s possible, but I don’t remember.
She was also cross-examined about what she told a police officer as follows:
Q.I suggested to you earlier one thing that you told a police officer, that is that you had been asleep for a while when you woke up because Darrin had returned. You remember those questions put to you earlier.
A.Yes.
Q.I suggest also that you told that police officer that the person in the room with you was fully clothed.
A.Yes.
Q.And that he took your underwear off.
A.Yes.
Q.And you agree you told her that.
A.Yes.
Q.And you told her that you presumed he was your partner.
A.Yes.
Q.And that the oral sex lasted for only 30 seconds.
A.What I can remember of it after waking up, yes.
Q.No, I’m suggesting that that’s what you told the police officer.
A.Yes.
Q.And that when you sat up – and this is what you’ve told the police officer – you told her that Mr Wannan had said ‘I thought you liked it’.
A.I don’t remember that at all.
Q.Are you denying you said that.
A.I don’t remember.
Q.And that he had said ‘Don’t tell anyone’.
A.He said ‘Don’t tell anyone’.
Q.I put to you earlier that you had actually said to Mr Wannan ‘We can’t do this’, and I think your answer was you didn’t remember saying that.
A.I don’t remember saying or hearing that.
Q.I suggest to you that as soon as you said that Mr Wannan stopped immediately and did his belt up and left the room.
A.I remember sitting up and working out that it wasn’t Darrin and –
Q.Can I put it this way: as soon as you said you worked it out it wasn’t Darrin Mr Wannan got up and left, didn’t he.
A.I don’t – I think he stayed there for a little bit.
Q.I suggest to you that he got up and left just about immediately after you’d sat up.
A.No, I don’t think that –
Q.How long did he stay there.
A.Not very long.
Q.What was he doing.
A.He did up his belt and then I think that’s when he walked out.
Q.So he stayed long enough to do up his belt and then he left the room.
A.Yes.
Mr Noon’s Evidence
Mr Noon gave evidence regarding the alleged offence. In relation to the complainant, Mr Noon gave the following evidence:
Q.    What did you see when you turned the light on.
A.    I saw S on the bed basically curled up in a ball and she was crying.
Q.    How was she crying.
A.Basically she looked like she was frightened, like you’d – probably as you’d see a small child.
Q.What was it about her that causes you to say that.
A.Just she was like sobbing, was crying like, as a small child would cry. Not just outright crying, she was basically staring into nothing. She had a very blank look on her and she was just curled up in a ball with her knees up towards her and holding her knees and just sobbing.
Q.Did you say anything to her.
A.I just said ‘What’s going on here?’ basically referring to – because Brenton was just behind me at this stage.
Q.You just said Brenton was behind you at this stage.
A.He had come in behind me at that stage, because from the front door to the bedroom was probably only about ten metres, five metres, not very far – five metres.
Q.So he is back in the house.
A.Yes, back in the house.
Q.At what point did you become aware that he was there behind you.
A.I just knew he was behind me, just felt his presence there.
Q.So you asked that question, did you get a response straightaway from S.
A.The question was basically directed to S and him, himself, and I looked at both of them, I didn’t get a response from S so I looked at him and he just – he basically just shrugged his shoulders, so I asked again, I said ‘What the hell is going on here?’.
Q.Then was happened from there.
A.He just basically shrugged his shoulders again and looked down at her and said ‘Why don’t you ask her?’.
Q.What did you do.
A.I was basically – at this stage I was just very confused at what was going on so I – then I just said, you know, I said ‘What’s happened here? What’s going on?’.
Q.Directed at.
A.Directed at both of them in the same way. And he actually looked at her again and said ‘Why don’t you tell him, S? Why don’t you tell him what’s going on?’.
Q.Then how did the conversation unfold from there.
A.I just basically said ‘Right, out here’ and I basically just sort of shrugged him a little bit and said ‘We are going out to the lounge room to discuss this’ so we started to – proceeded to the lounge room which is the room just adjacent to where I just said ‘What the hell is going on here? What are you doing?’ in that way.
Q.Before we get into the detail of what was said in the lounge room again, between you and the accused, up until this point whilst you had been in that bedroom area had S said anything to you.
A.No, S was – she hadn’t said a word to me, she was just basically just sobbing and was curled up in a ball.
Q.Once you were in the lounge room you just told us you asked that conversion [sic], did the accused respond.
A.I just said ‘What have you done?’ Or words to that effect and his response was ‘I stuffed up, okay, I stuffed up’.
Q.His tone of voice or his manner and demeanour when he said that.
A.He looked down at the ground, he didn’t look at me directly in the eye, just looked down at the ground, he just said another time ‘I stuffed up, all right, I stuffed up’.
Q.Did you respond to that.
A.I just said the words ‘Did you - ’
Q.Say the words you used.
A.I just said ‘Did you fuck her?’.
Q.Did he respond to that.
A.He just kept saying ‘I stuffed up, all right, I stuffed up’.
Q.Did he say anything to you about her role in all of this, that is S’s.
A.He didn’t really say that, the only words – I basically just argued with him saying ‘How could you do this to me?’ and I really wasn’t getting much response out of him at all, he was just saying ‘Okay I stuffed up, all right, I stuffed up’.
Q.How long do you think all of this went on for.
A.Probably about five, it could have been about five minutes because the reason why I wasn’t getting much response out of him was because his phone was ringing, his mobile was ringing constantly and he was constantly turning it off.
Q.Did you say something about that to him at some point.
A.After about the third ring I said ‘Why don’t you answer it’ because I knew it was Charmaine on the line, I said ‘Why don’t you answer it, be a man and tell her what you’ve done, get her home here and tell her what you’ve done’.
Q.Did you see him then answer the telephone.
A.He then answered telephone, yes.
Q.Did you hear what he said over the telephone.
A.He said ‘You’d better get back here, something’s happened’.
Q.Did Charmaine come back to the house.
A.It was in minutes. Because it was so sudden, she was back within minutes, I’d say she was probably on her way back because she was back within a minute or two minutes after that.
Q.By the time Charmaine arrived where were you, were you still in the lounge room or somewhere else.
A.Still in the lounge room, it was just basically – I can’t remember the exact context of the conversation but it wasn’t really much of a conversation it was more ‘How could you do this to me’ and again he was proceeding like ‘I stuffed up’.
Q.When Charmaine arrived did she come into the lounge room where you and the accused were.
A.Yes, she did.
Q.Did you hear the accused say anything to her.
A.When she walked in – she was with S at this time as well – as she walked in she just said ‘What’s happened?’.
Q.Did the accused respond.
A.He just said ‘I’ve stuffed up, I’ve been fooling around with S’.
Q.During all of this time had you returned to the bedroom at any stage.
A.At this stage they started arguing between each other, she actually said – I won’t get into that but at this stage they started arguing actually at this point, so I just through this was the time to go and see S, see what was happening, or see how she was.
Q.So you went back to the bedroom.
A.I went directly back to the bedroom, yes.
Q.Where was S at that time.
A.She was still in the same position on the bed.
Q.Was she still crying.
A.Still sobbing, still curled up in a ball, still looking blankly into space.
Q.Was there any difference between how she appeared by this stage and how you had seen her initially.
A.No, she was exactly the same.
Q.Did you speak to S then about what had happened.
A.When I entered the bedroom I closed the door and I just said ‘What’s going on here S, what’s going on?’
Q.What did she say.
A.I just didn’t really get a response. I do remember her saying ‘I want to go home’ that’s the only word – the first words that actually came out was ‘I want to go home’ and that first question I just said ‘Did you fuck him or what? What’s going on here?’ and then basically she just kept saying ‘I want to go home’, sobbing saying ‘I want to go home’ and then I just realised that I wasn’t getting much out of her and I just didn’t really realise what was going on and I said ‘Did he touch you? Did he touch you?’ And she just said ‘I thought it was you’ and then that’s when I realised something was not right and I just said ‘So did you consent?’ And she just said ‘No, I thought it was you’ and I just – that’s when I proceeded to say ‘I think – this is a police matter, we’ll have to call the police about this’.
Q.How did she react to that.
A.She just said ‘I want to go home’.
Q.Did you call the police.
A.We did eventually, yes, we did.
Q.At this point or some later point.
A.No, not at that point. At that point I had to bring S her senses at this stage because I wasn’t getting much out of her, she just looked shocked and I just said ‘Look, S, we have to leave here and ring the police’, so eventually she did agree and said ‘Okay’, to the point where I think I said ‘We have to get out of this house and call the police’, and she said ‘Yes, okay we’ll call the police’ and left.

Mr Noon was cross-examined about his discussion with the complainant and a heated discussion he had with the accused. His cross-examination continued:
Q.Having confronted S, she not having said anything as yet, the first thing you said to her was ‘What the hell is going on here?’ when you went back into the bedroom and closed the door.
A.That’s correct.
Q.You said to her ‘How can you do this to me?’
A.I think I said, yes, in the words ‘How could you do this to me?’ or ‘What’s going on here?’ or ‘How can you do this?’.
Q.I suggest the words you used were ‘How could you do this to me?’
A.It’s possible, yes.
Q.You gave a statement to police about this matter and the conversation you had had with S.
A.Yes.
Q.If I suggest you told the police ‘How can you do this to me?’ –
A.That’s correct.
Q.- you agree you said that to the police.
A.I put it in the statement, that’s correct.
Q.Indeed you were the one who asked S ‘Did you consent?’, those were your words, weren’t they.
A.I actually asked at that stage, because that’s after she said ‘I thought it was you’. And I said ‘Did he touch you?’, and she said ‘Yes’. And I said ‘Did you consent?’.
Q.Can I suggest to you the actual sequence of the conversation was you had asked her first ‘Did you consent?’ and it was after that she said ‘I thought it was you. I thought it was you’.
A.At this point I think it was I had said – no, I think it was before. I think. (my underlining).
Q.Again you related this conversation to the police that night.
A.Yes.
Q.If I suggest to you in sequence the words you told the police that were exchanged between you and S is that you had first asked her ‘Did you consent?’ and indeed you had to ask her twice. Do you accept that’s what you told the police.
A.Yes.
Q.You said ‘Did you consent?’ and she said ‘No, I didn’t’.
A.She said ‘No’ at one point.
Q.You kept asking her ‘Did you consent?’
A.I think it would have been once or twice.
Q.That was when she said ‘I thought it was you. I thought it was you’.
A.Possibly, yes.
Q.It was after she said those words that you told her in your view you should call the police.
A.I did mention ‘Did he touch you?’
Q.I suggest to you the actual sequence was after she said ‘I thought it was you. I thought it was you’ that’s when you said ‘I think we should call the police’.
A.It’s possible, because I thought at this stage that – because she had said no she hadn’t consented. I actually said, recollecting now, I said ‘Did he touch you?’ and she might have said ‘I thought it was you’ again.
Q.I take you back to your statement to the police. I suggest after that conversation ‘Did you consent? Did you consent?’, ‘No I thought it was you’, you said to the police officer taking your statement that night, the next thing was ’I think we should call the police’.
A.It would have been around that time.
Q.Do you agree that’s what you told the police.
A.Yes.
Q.And her response was ‘I want to go home’.
A.She wanted to go home during the whole time.
Q.I suggest that was after you said ‘I think we should call the police’.
A.Yes, she said it after that point, yes.
The Admissibility of the Conversation
The question of the admissibility of the conversation must be viewed against the background that the case for the prosecution was that the accused had committed rape because the complainant was asleep when the act of cunnilingus was performed and therefore, there could be no consent. In the alternative, it was argued that the accused didn’t care one way or another whether the complainant was consenting when he commenced the act of cunnilingus. It was not part of the case put by the Director that the complainant was awake throughout but mistook the accused for her boyfriend.
The actual terms of the complaint is a matter for the jury to make the findings and draw the appropriate inferences, but it is for the trial Judge to determine whether the evidence contains the necessary characteristics, namely, that the complaint must have been spontaneous and must have the capacity to demonstrate consistency on the part of the complainant. “The ultimate question must always be does the “complaint”, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.” See R v Freeman [1980] VR 1 at 5.
From a review of the whole of the evidence and in particular the passages set out, it seems that the precise “complaint” relied on by the prosecution is encapsulated in the passage which I have underlined in paragraph [110].
It seems to me that neither on the first occasion when Mr Noon came into the room where the complainant was, nor on the subsequent occasion, after a lapse of some minutes, when he was involved in the argument with the accused, did Mr Noon ever obtain an answer from the complainant which was consistent with the complainant waking up and finding the act of cunnilingus being performed. I do not consider that the “complaint evidence” should have been so characterised.
Even if the evidence was properly characterised as complaint evidence, the answers to the questions asked by Mr Noon were very brief and prompted by the circumstances in which the events unfolded and the nature of the questions asked. It is my view that they should not be considered spontaneous and that they are not capable of supporting the complainant’s credibility. The complainant when asked what had happened answered that she had “been touched” and that she “thought it was you (Mr Noon)”. Although, in some cases complaint evidence can be admitted even though it is not strictly spontaneous, this case should be distinguished on the basis of the brevity of the answers and the lack of consistency. In particular, the lack of detail in the answers provided by the complainant and the assertion that she “thought it was you” is inconsistent with the complainant’s evidence that she was asleep.
The conversation is therefore, in my view, inadmissible because it did not tend to support the complainant’s credibility in light of the case put by the Director. It was not capable of demonstrating consistency on the part of the complainant. In the complainant’s evidence in examination-in-chief and her cross-examination, but more particularly the evidence given by Mr Noon, there are considerable and significant differences, which, in my opinion, do not enhance the complainant’s credibility.
Directions Given to the Jury
Even if the complaint evidence was properly admitted, in my view the whole topic became confused in the minds of the jury by the directions provided by the trial Judge. In his summing up his Honour said:
At the same time, the failure of S to complain at the earliest possible opportunity may be evidence of her consent to the act of intercourse alleged in this case, or at least may be taken into account in evaluating her evidence, depending very much of course upon the view of the facts as you find them to be. (my underlining).
Following this statement, in the course of his summing up, the learned trial Judge went on to say:
You should bear in mind here that there may be many reasons to explain why no complaint was properly made, if indeed that is the fact, or why a woman, or why S herself, may hesitate in making or maybe refrain in making a complaint immediately afterwards.
It is established by cases such as Kilby v R (1973) 129 CLR 460 and R v P, BR [2004] SASC 223 that inferences of consent cannot be drawn from a failure to complain and that a complaint is now only ever admissible in support of a victim’s credibility, whether or not consent is in issue.
In my view the statement referred to earlier by the learned trial Judge is not a correct statement of the law, and although modified by the Judge, as required by s 34I (6A) of the Evidence Act 1929 (SA), the earlier statement together with the warning would only confuse the jury as to what they could make of the evidence which had been admitted and how it could be used.
Conclusion
It is my view that the passages of evidence that I have set out indicate both a lack of spontaneity and are incapable of enhancing the victim’s credibility. On Mr Noon’s evidence there was also a delay of some minutes between him finding the complainant and her responses to his series of repeated, probing questions. In the circumstances, I think that the answers were effectively extracted from the complainant by his questions.
For the reasons that I have set out, it is my view that the evidence of the conversation should not have been admitted. In addition, I find that the directions given to the jury were inadequate. I would allow the appeal in relation to both Grounds 3 and 6.