Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against conviction - Sexual offences - Admissibility of evidence of recent complaint - Turns on own facts

"T" v The Queen [2000] WASCA 153

Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460

R v Osborne [1905] 1 KB 551

1 This is an appeal against conviction. On 15 May 2002, the appellant was convicted after a trial by jury of one count of deprivation of liberty, two counts of sexual penetration without consent and one count of threats with intent.

2 The circumstances of these offences, as alleged by the Crown at trial, were as follows. The complainant was 16 years old at the time of the alleged events and was living at home with her family. The complainant would occasionally baby-sit for the appellant's girlfriend. The appellant used to drive her home after baby-sitting. The complainant's evidence at trial was that, on the day which the offences were said to have occurred, she was at another woman's house with the appellant's girlfriend. The appellant phoned that house while they were there. He said that he was at the Bunbury courthouse and asked the complainant and his girlfriend to come and meet him. The complainant and the girlfriend took a taxi to the courthouse. After the taxi dropped them off the appellant paid the driver and the three of them walked to a car that the appellant had borrowed. The appellant then dropped his girlfriend off at a friend's house and said that he would take the complainant home to her house.

3 The complainant's evidence was that the appellant instead drove back to the centre of town and told her he was going to "shout" her some drugs. The complainant waited in the car. When the appellant came back he drove to a shopping centre and told the complainant to go and buy a pack of syringes and a bottle of water which the complainant did. They then went into a public toilet where the appellant injected the complainant, with what he said was amphetamines. The complainant's evidence at trial was that she started to feel "drowsy and sick" (AB 52). She remembered vomiting, then getting into the car, being driven to a house and then being carried into the house by the appellant.

4 Her next memory was of waking up on a mattress in a room. She realised that her pants were down and her arms and legs were bound. The appellant was on top of her and was penetrating her vagina with his penis. The complainant gave evidence that she was very scared and was screaming out for the appellant to stop. The appellant continued to have sex with the complainant. He then forced the complainant to perform oral sex on him by forcing his penis into her mouth. The complainant gave evidence that the appellant then got dressed and undid the ties so that he could dress her and again tied her hands, this time behind her back. The complainant told the appellant that she was thirsty so the appellant led her into the laundry and held her head under the tap so she could drink. He then filled up a bottle of water before leading the complainant back to the mattress. The complainant's evidence was that he then forced her to swallow about 20 cold and flu tablets and two "Tenuate Dospan" tablets and made the complainant smoke some marijuana. The appellant then carried the complainant to the car and drove her home. She gave evidence that before she went into her house he told her that if she told anyone what had happened he would come back and do the same to her again and that she would pay if anyone found out. The complainant gave evidence that the appellant said to her: "I know where you live so you can't run and hide" (AB 60).

5 The complainant's evidence was that she then went inside and asked her younger brother to get the scissors and to cut the ties off her hands before she went and had a shower. The complainant said that she did not tell her brother what had happened because, "He was only 9 years old and I didn't want him to know anything about it" (AB 60). The complainant said that the appellant returned to her house about half an hour later and asked her if she was going to get the money owed to her by the woman that she had been baby-sitting for earlier in the day. The complainant's evidence was that the appellant was holding a baseball bat. She said that she got in the appellant's car because she "was very scared of him" (AB 61). The complainant went with the appellant to get her money, she said that she stayed at the house for about 20 minutes before getting a lift home with another couple who were also there. The complainant's evidence was that the appellant again returned to her house later that night to speak to her which she did because she was scared of him. The complainant also gave evidence that the appellant returned to her house the following morning to speak to her again. Her evidence was that the appellant said that "she had ruined his life and ruined his family" and that he was going to make her pay (AB 62). The complainant said that she then asked the appellant to leave, which he did and that she had no further contact with him.

6 The complainant gave evidence that, prior to these events, she was a virgin and that as a result of the attack she experienced vaginal bleeding. She gave evidence that there was blood on her underpants, which her mother noticed when she discovered the underpants in the bathroom. The complainant and her mother had a discussion about the bloodstained clothing, but the complainant did not tell her mother at that point how her underpants had come to be bloodstained. When questioned as to her relationship with her mother after this discussion the complainant said that she became "quite aggressive" with her mother (AB 63). She gave evidence that she did not want her mother to know what had happened and was afraid that if her mother knew what had happened she would be "disappointed" in her (AB 63). It would not be unreasonable to suppose that her reluctance to tell her mother what had happened sooner was also connected to the threats that had been made to her by the appellant, particularly given her evidence that she had got back into the appellant's car later that day because she was scared of him and that she went and spoke to him again when he returned to her house later that night because: "I was too scared to do otherwise and I didn't want him to hurt my family or my house" (AB 62). It was not until some days later that the complainant told her mother that she had been attacked and that it had happened on the day that her mother had discovered her bloodstained underwear.

The admissibility of the evidence of recent complaint

7 The appellant's sole ground of appeal is in relation to the admissibility of the evidence of recent complaint. The appellant argues that the learned trial Judge erred in admitting the evidence of the complaint by the complainant to her mother as it was not recent. The admissibility of this evidence was objected to at trial by the appellant's counsel. However, the learned trial Judge ruled that the evidence was admissible as recent complaint evidence.

8 The authorities in relation to the admissibility of evidence of complaint in sexual cases are well established (Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 466 and 472). In Kilby v The Queen Barwick CJ outlined those principles as follows (at 466):

"... evidence of a complaint at the earliest reasonable opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped: that is to say, it is admitted as matter going to her credit (see Reg v Lillyman, per Hawkins J; Sparks v The Queen."

9 To be admissible, the complaint must be made as speedily as could be expected (R v Osborne [1905] 1 KB 551 per Ridley J; "T" v The Queen [2000] WASCA 153 per Miller J at [13]). In "T" v The Queen Miller J, citing Cross on Evidence, stated that:

"Many cases have since been decided on the question of what constitutes a complaint made as speedily as can reasonably be expected. J D Heydon in Cross on Evidence, 5th Australian ed, at par 17270 rightly warns against the utility of perusing the cases too closely, saying:

'Lord Goddard CJ has stressed that this, too, is a matter concerning which the trial judge has a complete discretion provided the trial judge applies the principle that the complaint must be made as speedily as can reasonably be expected. A complaint made as long as a week after the event in question has been admitted and it is settled that the mere fact that the complaint might have been made to others before it was made to the witness who narrates it in court does not prevent it from being received in evidence.

Two or more complaints may be proved, and the fact that the prosecutrix only deposed to one does not prevent proof of the others by the persons to whom they were made, so long as each of the complaints can fairly be regarded as having been made at the first reasonable opportunity after the offence. But on occasion the requirement of complaint at the first reasonable opportunity will prevent proof of a complaint (at least as a complaint, as opposed to a statement rebutting invention, for example) subsequent to the first complaint.

Reasonableness is to be judged by reference to the sensitivities of the particular complainant and the circumstances in which the particular complainant was placed at the time.'"

10 The question here, then, is whether the complainant made the complaint at the earliest reasonable opportunity, given the circumstances of the particular complainant and the circumstances of the alleged offence.

11 Although the complainant asserted in her original statement that she had complained to her mother about four days after the attack, the complainant's evidence at trial was that she had told her mother that she had been raped "about 10 days after it happened" (AB 64). Her mother's evidence was that for about a week beforehand the complainant had been "really snapping" and that they had been arguing (AB 118). When her mother was asked in cross-examination to describe her relationship with

the complainant she said that it was, "Fairly close. She was a teenager. We were having problems" (AB 121). In re-examination, when asked to describe the state of their relationship at the time she discovered the bloodied underpants she said: "Not good ... She would just go into her room. She would snap at me. She wouldn't answer my questions. We were just volatile with each other" (AB 122).

12 The learned trial Judge admitted the complaint as evidence of recent complaint on the basis that it was " ... an offence of violence and it culminated in a serious threat against the complainant who was then only 16 years of age" (AB 26). His Honour also specifically agreed with the submissions of the prosecutor, who submitted that she did not tell her mother immediately because "she is so scared and the relationship with the mother is a little fragile in any event" (AB 24).

13 Given the particular sensitivities of the complainant and the circumstances in which the complainant was placed at the time, I see no error on the part of the learned trial Judge in admitting the evidence of the complaint as evidence of recent complaint. The complainant was very young and she gave evidence that she was a virgin prior to these events. It was a violent attack, which was accompanied by threats. Given those circumstances, and given the evidence of the complainant's mother as to their relationship at the relevant time and the evidence of both the complainant and her mother of the discussion they had when her mother discovered her bloodied underpants, it was open to his Honour to find that the complaint was made as speedily as could be expected.

14 For the reasons I have given, it is my view that the appeal should be dismissed.

16 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.

• The appeal
• The circumstances of the offences
• The admissibility of the evidence of recent complaint
• Conclusion