Suresh v The Queen (P39-1997) [1998] HCA 23 3 April 1998
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation:
J Courtis for the appellant (instructed by Wojtowicz Kelly)
J R McKechnie QC with J Mactaggart for the respondent (instructed by Director of Public Prosecutions (Western Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Suresh v The Queen
Criminal law - Sexual offences - Prior complaint evidence - Admissibility - Requirement that evidence of complaint be early or recent.
Criminal law - Sexual offences - Prior complaint evidence - Effect of admission of prior consistent complaint evidence on credibility of complainant - Whether accused deprived of chance of acquittal that is fairly open where prior consistent complaint evidence wrongly admitted - Application of proviso.
Criminal law - Sexual offences - Prior complaint evidence - Summing up to jury - Jury directed that complaint evidence relevant to identification of accused as sexual offender.
Criminal law - Prior inconsistent statement - Complaint evidence relied on by defence as prior inconsistent statement - Admissibility of prior inconsistent statement - Purpose of rules governing admissibility of prior inconsistent statements.
Criminal law - Whether prior complaint evidence should be led which does not specifically identify accused - Relevance and probative value of prior complaint evidence which does not specifically identify accused.
GAUDRON AND GUMMOW JJ. The appellant was convicted of a number of sexual offences against the daughter of friends with whom he and his family stayed shortly after their arrival in Australia and with whom they later maintained regular social contact. The offences in question spanned the period between 23 December 1990 and 28 March 1992. The complainant was born on 13 December 1982 and was, thus, aged eight at the time of the first offence charged and not quite 9½ at the time of the last.
At trial, the complainant gave evidence that, although they were not related, she usually referred to the appellant as "Uncle Suresh". There was also evidence that she was related to two persons who were properly described as uncles, one of whom lived in Australia and maintained close contact with her immediate family. In the course of her evidence, the complainant also said that, in October 1992, she told some of her schoolfriends that she had been sexually abused by her uncle, without nominating the person to whom she was referring. Two of her schoolfriends were called as witnesses in the prosecution case and they testified that she had, in fact, confided in them in those terms at that time. No objection was taken to their evidence or to that of the complainant as it related to her conversation with them.
On appeal…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Suresh v The Queen [1998] HCA 23
Case
[1998] HCA 23
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Kunnakatil Suresh against his conviction for sexual offences. The central issue revolved around the admissibility and effect of evidence of complaints made by the complainant, a young girl, to her school friends. The alleged offences occurred between December 1990 and March 1992, but the complainant did not report them until approximately October 1992, about seven months after the last alleged offence. Crucially, when she did complain, she did not identify the appellant by name, referring only to an "uncle".
The legal issues before the High Court included whether the evidence of the complainant's complaints was admissible as "recent complaint" evidence, given the significant delay and the lack of specific identification of the appellant. The court also had to consider the impact of admitting such evidence on the appellant's chance of a fair acquittal, particularly if the evidence was wrongly admitted, and whether the proviso to the Criminal Code could apply to uphold the conviction. The court also examined the trial judge's directions to the jury regarding the use of this complaint evidence.
The High Court, by majority, dismissed the appeal. While there was division in the Court of Criminal Appeal regarding the admissibility of the complaint evidence due to the delay and lack of identification, the majority in the High Court ultimately found that the admission of the evidence, even if irregular, did not result in a substantial miscarriage of justice. This was partly because the defence at trial had not objected to the evidence and had, in fact, used the complainant's delay in complaining as a strategic point to challenge her credibility. The court noted that the trial judge's directions to the jury had emphasised the importance of the complainant's credibility and the delay in her complaint, which may have mitigated any prejudicial effect of the complaint evidence itself.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
A difficulty arises for my consideration of the appeal, following a ruling made, by majority, during the hearing. Realising, at the eleventh hour, the quandary presented by the foregoing problem, counsel for the appellant sought to amend the notice of appeal to complain about the insufficiency of the trial judge's directions to the jury on the use which they might make of the evidence in question. The application was refused; but without prejudice to the appellant's entitlement to press this complaint if it proved relevant to the application of the proviso.Evidence given as "recent complaint" Most of the facts necessary to understand my reasons are set out in the opinion of Gaudron and Gummow JJ. I will not repeat them. The offences with which Mr Kunnakatil Suresh (the appellant) was charged were alleged to have taken place between 23 December 1990 (first count) and 28 March 1992 (ninth count). The first time that the complainant, then a school girl aged nine years, "told her story" to school friends was in about October 1992, ie about seven months after the last offence charged. The matter is a little complicated because, in evidence, the complainant stated that other incidents of a similar kind, not the subject of any charge, had taken place between March 1992 and when she spoke to her school friends in late 1992. At no stage did the complainant identify the appellant to her school friends by name. She simply told them that she had been sexually abused by an "uncle", without identifying him further. Despite this important weakness in the evidence of complaint, the testimony of the complainant herself and of two of her school friends on this point was received. It was placed before the jury. When its tender was foreshadowed in the absence of the jury the trial judge asked how such evidence was admissible[16]. Counsel then appearing for the appellant indicated that he believed that the Crown was leading the evidence "by way of recent complaint". This was confirmed by the prosecutor. Despite the reservations which the trial judge appeared to signal, counsel for the appellant did not object to the evidence. Instead, he made an application for leave to cross‑examine the complainant upon it. That leave was granted to permit counsel to "put to her [the] suggestion that the offences of which she has given evidence were committed not by the accused but by another person referred to by her as 'uncle'"[17]. The trial then proceeded on that footing. No objection was taken to the evidence of the making and receiving of the complaints. No suggestion was made that the complaints constituted a prior inconsistent statement in which the complainant had alleged that she had been abused by somebody other than the appellant.[16]R v Suresh, Supreme Court of Western Australia, Trial transcript, 31 January 1994 at 12 per Murray J.[17]R v Suresh, Supreme Court of Western Australia, Trial transcript, 31 January 1994 at 15. When first confronted with the accusations by the police, the appellant's initial defence was a complete denial. He has adhered to that denial. However, to the police, he added a suggestion that the complainant was sexually forward and suggestive in her conduct in relation to him; conduct which he discouraged. He also recounted a report from his wife that she had chanced upon the complainant masturbating her sister. Such conduct on the part of a young girl is not impossible. However, it would have involved an obvious and very risky strategy to present it to a jury. For understandable forensic reasons, trial counsel did everything possible to keep the appellant's statements to the police out of evidence; but without success.
Decision
Reasons for decision
GAUDRON AND GUMMOW JJ
HUGH J
KIRBY J
HAYNE J
This, together with reminders of the evidence of the visits of biological uncles with whom the complainant had also experienced close contact, were left to the jury to unravel. There was no relevant application to correct the summing up. After a retirement of two hours, the jury returned with verdicts of guilty on all counts.Decision of the Court of Criminal Appeal In the Court of Criminal Appeal, the appellant retained fresh counsel, who has also argued the appeal in this Court. The principal ground of objection there was that the evidence of the complaints, made by the complainant to her school friends, should not have been received. The foundation of this submission was that the complaints had not been made "at the earliest reasonable opportunity"[21]. As such, it was argued, they ought not to have been accepted in evidence. [21]Kilby v The Queen (1973) 129 CLR 460 at 465 per Barwick CJ; see also at 473 per Menzies J. Upon this point, the judges constituting the Court of Criminal Appeal divided. Anderson J (with whom Franklyn J agreed) concluded that the evidence was not admissible[22]. Their Honours nonetheless applied the proviso[23]. They declined relief on the basis that the admission of the evidence "did not actually cause a substantial miscarriage of justice"[24]. The foundation for that view was their Honours' estimate that it had been an important part of the defence case that the complainant had been so slow to complain. The strong emphasis by the trial judge on the delay made it "possible to say of the complaint evidence as a whole that, if anything, it had a negative effect on the complainant's credibility"[25]. [22](1996) 16 WAR 23 at 36.[23]The Criminal Code (WA), s 689(1).[24](1996) 16 WAR 23 at 36.[25](1996) 16 WAR 23 at 36. Rowland J, on the other hand, did not need to consider the proviso. His Honour indicated that he was "not convinced that the evidence ... was not admissible"[26]. He said[27]:"In any event, it appears that counsel for the defendant at trial may have shared that view. It seems that no objection was made to the admission of this evidence, and it may well be that that was consistent with the fact that it was a deliberate and tactical decision made by the defence to permit that evidence to be introduced. I agree with Anderson J that (even if not admissible) the acceptance of this evidence has not resulted in a miscarriage of justice."[26](1996) 16 WAR 23 at 25.[27](1996) 16 WAR 23 at 25. Again, there was no suggestion in the Court of Criminal Appeal that the evidence was admissible on a ground other than "recent complaint"; for example as containing prior statements of the complainant inconsistent with her testimony in court. When special leave was granted by this Court on the papers[28], the point which the parties expected to argue, as indicated by their written submissions, concerned the applicability of the proviso in the stated circumstances. The appellant submitted that, as the only foundation for the exceptional admission of the complaint evidence was to demonstrate consistency in the conduct of the complainant (and thus to bolster her credibility), such evidence was crucial to the prosecution case. As the trial judge had told the jury, and as everyone recognised, the credibility of the complainant was critical to the Crown case. Anything that added to it may have added to the risk that the appellant would be convicted. It diminished the appellant's chances of acquittal. Estimates of how the jury might have reacted to the evidence of complaints were pure judicial speculation. In the appellant's submission, the evidence having been wrongly admitted, there was necessarily a miscarriage of justice and the case was not one for the proviso. [28]By Brennan CJ, Dawson and Toohey JJ on 15 August 1997.
Ratio Decidendi
Legal Principle Established
Established by:
GAUDRON AND GUMMOW JJ,
HUGH J,
KIRBY J,
HAYNE J