P R W v The Queen [2011] VSCA 381

CRIMINAL LAW - Sentence - Incest and committing an indecent act with a child - Sentencing judge took into account offender's mental state and physical health - Relevance of protective custody - Total effective sentence of 9 years and 9 months with a minimum term of 7 years and 6 months' imprisonment not manifestly excessive.

1 After a trial in the County Court the applicant was found guilty on three counts of incest (counts 1, 4 and 5) and two counts of committing an indecent act with a child under the age of 16 (counts 2 and 3). A plea was conducted and the applicant was sentenced to be imprisoned for a term of six years on each of the counts of incest, for a term of 18 months on one count of an indecent act with a child under the age of 16 and for two years on the other count of indecent act with a child under the age of 16. With a measure of cumulation, a total effective sentence of nine years and nine months' imprisonment, with a minimum term of seven years and six months' imprisonment, was imposed upon the applicant.

2 The applicant seeks leave to appeal against conviction and sentence.

3 The offences were alleged to have occurred between January and June 1999. The complainant was the applicant's stepdaughter. At the time of the alleged offences the complainant was aged between five and six years and the applicant was aged between 34 and 35 years.

4 The complainant was the principal Crown witness. She said that the applicant would regularly enter her bedroom to say good night. Before the complainant commenced school in February 1999, the applicant was in the habit of entering her bedroom once she had gone to bed. She said that he would pull down the blankets and pull her pyjama pants down to her knees or lower, exposing her vagina. She said the applicant would place his hands between the complainant's legs and penetrate her vagina, causing pain. This occurred for a number of days or weeks. The Crown led this evidence as uncharged acts.

5 The complainant said that later in 1999 the applicant entered her bedroom when she was reading a book before going to bed. The applicant pulled the blanket away from the complainant, pulled down her pyjama pants, inserted his tongue into her vagina and began licking it. After doing this for some time, the applicant stopped and left the room. (Count 1.) Later, on a number of occasions, the applicant acted in the same way. (Uncharged acts.)

6 On a subsequent evening in 1999, the applicant entered the complainant's bedroom at bed time, unzipped his pants and pulled out his erect penis. He told the complainant that he wanted her to touch it. She did not want to. She said that the applicant then took hold of the complainant's wrist, pulling it towards his penis. She told him that she did not want to touch it. He kept prompting her to touch him. After a period of time, the applicant placed his penis back in his pants and left the room. (Count 2.) On later evenings after this occasion, the applicant acted in the same way. (Uncharged acts.)

7 On another evening in 1999, the applicant again entered the complainant's bedroom at bed time. He asked the complainant to kiss his penis. The complainant said that she did not want to, but the applicant insisted. The complainant said that she gave him 'peck' kisses along the side of his penis. (Count 3.) On later evenings the applicant repeated this conduct. (Uncharged acts.)

8 One evening the applicant, while in the complainant's bedroom, exposed his penis and told the complainant to put his penis in her mouth. She said she thought that, 'if she just did it, it would be done quicker and she wouldn't have to go through it'. The applicant put his penis in the complainant's mouth. After a while, he said 'good night', zipped up his pants and left. (Count 4.) On later evenings, the applicant repeated this conduct. (Uncharged acts.)

9 On another evening in 1999, the applicant entered the complainant's bedroom and penetrated her vagina with his finger. (Count 5.) While he was doing so, the complainant's brother came into the bedroom. The applicant thereupon quickly withdrew his finger from the complainant's vagina and the complainant pulled up her pyjama pants.

10 The complainant said that the offending conduct ceased altogether when she moved to another bedroom in June 1999.

11 The complainant did not tell anyone that she had been sexually abused by the applicant until 2007.

12 The first ground of the application for leave to appeal against conviction is as follows:

The learned trial judge erred in ruling that a previous representation purportedly made by the complainant was admissible, and in particular that the evidence:

(i) was 'sufficiently probative' pursuant to s 41D(2) of the Evidence Act 1958;

(ii) was admissible to both 'prove the truth of the fact contained in the representation' and to 'support the credibility of the child complainant as a witness' pursuant to s 41D(4) of the Evidence Act 1958; and

(iii) should not be excluded in the exercise of the Court's discretion.

13 The complainant's mother married the applicant in 1998 and she and her three children by her first marriage lived with the applicant at a house in Forest Hill.

[The complainant] came to me, and I believe it was before she started school, complaining of a sore vagina or as we called it, a fanny. ... I think it was just, you know, mum, I've got a sore fanny and being a little girl I put it down that she wasn't wiping herself properly and I put some cream on it and sent her on her way.

The time at which the complaints were made, during the period between commencing to live at Forest Hill (January 1999) and the complainant starting school (February 1999), coincided with the period in which the complainant said that the digital penetration of her vagina occurred. The complainant's mother said the complaints were made 'a handful of times'. The complainant, on the other hand, denied telling anyone about being in pain when the offences were alleged to have been committed, although she said that she did experience pain.

15 Section 41D of the Evidence Act provides:

41D Evidence of previous representations made by child complainants

(1) If, in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence, a child complainant who has made a previous representation is available to give evidence -

(a) about the existence of a fact of which he or she had personal knowledge and that he or she intended to assert by the representation; or

(b) if the child complainant's credibility is relevant, to support his or her credibility -

the hearsay rule, subject to subsection (2), does not apply to evidence of the representation that is given by -

(c) the child complainant; or

(d) a person who saw, heard or otherwise perceived the representation being made.

(2) Subsection (1) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.

(3) A witness has personal knowledge of the asserted fact is his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than previous representation made by another person about the fact.

(4) Evidence of the kind referred to in subsection (1) is admissible for either or both of the following purposes -

(a) to prove the truth of the fact contained in the representation; or

(b) to support the credibility of the child complainant as a witness.

(5) If the court receives evidence of the kind referred to in subsection (1) for the purpose referred to in subsection (4)(a), the court must warn the jury that evidence of that kind may not be as reliable as original evidence.

(6) Nothing in this section takes away from or limits, any discretion a court has to exclude evidence.

16 The prosecutor relied upon the evidence to prove the uncharged acts of digital penetration and to support the credibility of the complainant as a witness. The trial judge ruled that the evidence was admissible for both purposes.

17 Counsel for the applicant in this Court submitted that the evidence did not meet the requirement that it was 'sufficiently probative'. He pointed out that it was clear from the words of the section that the evidence was to be more than relevant. Counsel relied upon the fact that there was no indication of the circumstances that caused the soreness and there were other possible causes of the soreness consistent with the innocence of the applicant.

18 The principal drawback from which hearsay evidence generally suffers stems from the lack of means of testing the trustworthiness of the nature of the statement. That difficulty does not attend evidence admitted pursuant to s 41D, for the maker of the hearsay statement will be available to give evidence. In those circumstances, the hearsay statement confers upon the complainant the advantage of being able to rely upon self-serving evidence. I am inclined to think that the evidence will be sufficiently probative if it discloses an identifiable, specific representation, which, in the circumstances of the particular case, does add weight to the complainant's evidence by constituting a representation that was likely to be made if the fact contained in the representation had occurred.

19 In the present case, the complaints by the complainant to her mother were specific and were made at the time the applicant was alleged to have digitally penetrated the complainant's vagina. Although the complainant denied making any complaint of soreness, the evidence was consistent with the complainant's evidence that she experienced pain. The existence of other possible explanations for soreness was a matter to be considered by the jury but it was not, I think, fatal to the inference that the soreness was caused by the applicant's actions. The acts to which the evidence related were uncharged acts, not the offences charged, but in my view that did not affect the probative value of the evidence, for the uncharged acts, which constituted a stage in the development of the offending, were a significant part of the Crown case in that they provided a context to the evidence of the offences.

20 Accordingly, in my opinion, whether this Court is to determine the admissibility of the evidence for itself[1] or is to apply the principles set out in House v The King,[2] the trial judge's determination was correct. The statement said to have been made by the complainant was consistent with a fact to be proved and its making was so connected to that fact that, when taken in conjunction with other evidence in the case, it bore on the probability of that fact having occurred.[3]

21 Counsel for the applicant submitted that the complainant's statement to her mother was too ambiguous to support the credit of the complainant. In any event, so it was said, the evidence could not be used to buttress the complainant's credibility because the complainant denied making any complaint. It was also submitted that the Act contemplates that the complainant should give evidence of the representation sought to be admitted pursuant to s 41D. The section requires that the complainant 'is available to give evidence' and counsel for the applicant submitted that that meant that the complainant was able to give evidence about what the complainant intended to assert by making the representations.

22 The statement, 'I've got a sore fanny', was clear enough and was not rendered ambiguous because the complainant did not identify a cause of the soreness. I do not think that the complainant's statement that she did not make the complaint described by her mother entailed that the evidence could not support the complainant's credibility. The evidence rendered more credible was the complainant's evidence of digital penetration. Finally, in my opinion, the fact that the complainant was called as a witness satisfied the requirement that she was available to give evidence. It was not necessary that the complainant give evidence of the making of the complaint.[4]

23 The second ground of the application for leave to appeal against conviction is:

The learned trial judge erred in questioning the complainant about the particular circumstances of penetration after the Crown had failed to adduce specific evidence from the complainant.

24 Count 1 alleged that the applicant 'took part in an act of sexual penetration' with the complainant 'in that he introduced his tongue into the vagina of' the complainant. In giving her evidence at the special hearing, the complainant said that the applicant licked the 'middle bit' of her vagina.

25 In the absence of the jury the trial judge raised with counsel the question whether the complainant's evidence established penetration. The prosecutor said that he wished to ask the complainant whether the applicant's tongue went into her vagina. The trial judge said that he did not consider the question, 'Did the tongue go into your vagina or just stay on the outside', was a leading question. When counsel for the applicant was asked for his reaction, he said:

My proposed course would be for your Honour to ask it given that it's not a matter raised in cross-examination.

26 The complainant was recalled and the following exchange took place between the trial judge and the complainant:

Now when you say he licked you out, or put his tongue to your vagina, does that mean that he put his tongue inside your vagina or just on the outside? --- Just on the outside.

Just on the outside? --- Yes, like not in the hole part, but like, yes, the rest of it.

Did it go --- are you able to say whether the tongue went inside the lips of your vagina, at all? --- Yes.

What do you say about that? --- It did.

27 Counsel for the applicant in this Court submitted that the last question by the trial judge crossed the line and constituted an impermissible descent by the trial judge into the arena. He relied upon a statement by Nettle JA in R v Brdarovski that:

It is not part of the functions of a trial judge to endeavour to fill gaps in a Crown case, nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone ... [5]

28 On the other hand, a trial judge is entitled to ask questions of witnesses in order to resolve ambiguity. As Wood CJ at CL said in R v Esposito:

There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to [the judge]. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice.[6]

In my opinion, in the present case the trial judge did not cross the line or break through the ice. He went no further than was necessary to reveal the unspoken conclusion in evidence which was equivocal and uncertain. He did not cross-examine the witness. Effectively, the trial judge went no further than the question he formulated in debate with counsel and which counsel apparently approved. I do not think that the ground has been established.

29 The third ground of the application for leave to appeal against conviction is that the verdicts are unreasonable and cannot be supported having regard to the evidence.

30 Counsel for the applicant pointed to defects in the Crown case. The complainant gave evidence that her brother had walked in on her when the lower half of her body was exposed and she was being digitally penetrated by the applicant. The brother did not recall the event. The offending was alleged to have occurred in the family home while the complainant's mother and brothers were there, the complainant's bedroom door was open and the light was on. Contrary to her witness statement, in cross-examination the complainant said that she had told the applicant to stop his conduct and that the applicant had engaged in oral sex with her on the 'last occasion'. Counsel submitted that having regard to delay and the absence of corroboration, the denials of the applicant, a person of previous good character,[7] the jury should have experienced a reasonable doubt as to whether the applicant had committed the offences.

31 The question for this Court is whether 'the jury must, as distinct from might, have entertained a doubt about [the applicant's] guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.'[8] The Crown case depended principally on the evidence of the complainant. She gave evidence which was capable of being accepted, and which established each of the offences. The criticisms which are now made of the Crown case were matters which were before the jury and which they must be taken to have considered. In my opinion, this was not a case where the jury must have entertained a doubt as to the guilt of the applicant.

32 Accordingly I would dismiss the application for leave to appeal against conviction.

33 There remains the application for leave to appeal against sentence.

34 The applicant is now 47 years' old. He endured a troubled upbringing. His mother died from the effects of alcoholism when he was aged seven years. The applicant's father, a truck driver, was often absent, but was violent and sexually abusive of the applicant when he was at home. The applicant's education was interrupted and incomplete. He left home at the age of 15 years and obtained work in a lighting factory and then as a welder and later as a security guard. He was injured in an accident at work and has had little paid employment for a number of years.

35 The applicant has a son by a woman with whom he formed a relationship at the age of 21 years. The son was placed in State care and was later returned to the applicant when he formed another relationship. The applicant has had a number of relationships with different women. Two of them gave evidence in the course of the plea that the applicant was a good father.

36 The first ground of the application for leave to appeal against sentence is that the sentencing judge gave insufficient weight to the fact that imprisonment would be burdensome to the applicant.

37 Counsel for the applicant relied upon a report by a psychologist, who noted that the applicant suffered from chronic mental health symptoms, including symptoms of post traumatic stress disorder, chronic low grade to significant depressive illness and chronic pain disorder. Further, the applicant suffered physical ailments, including joint and spinal pain, a prolapsed disc and neurofibromatosis.

38 It is evident from his sentencing remarks that the judge did moderate the sentence having regard to the fact that imprisonment would be a burden upon the applicant as a consequence of his depressive state. The sentencing judge also took into account the content of a letter written by the applicant which stated that he was 'doing it hard in prison' and was being treated for ongoing depression. His Honour said, in the course of his sentencing remarks, that moderation of the applicant's sentence due to his underlying depression 'will be perceptible but slight.'

39 In my opinion, the sentencing judge did take into account the applicant's mental state, and I do not think that the sentence which he imposed demonstrates that the weight which he gave to that factor was inadequate. As to the applicant's physical state, there was no evidence that his physical condition would make imprisonment a greater burden for him, nor was there any evidence of a risk of imprisonment having an adverse effect upon his health.[9] Nevertheless, the sentencing judge was required to consider whether the nature of the applicant's disabilities disclosed by the evidence was likely to make imprisonment a greater burden to him.[10] In the present case, I am of the view that the applicant's health was not so compromised as to indicate that the sentence imposed upon him was excessive.

40 The second ground of the application for leave to appeal against sentence is that the sentencing judge erred in failing to sufficiently moderate general and specific deterrence having regard to the applicant's mental condition at the date of sentence.

41 Counsel for the applicant at the plea hearing submitted that the applicant's psychological condition was relevant only to the extent that a sentence of imprisonment would weigh more heavily upon the applicant than on a person in normal health. The sentencing judge acted on that submission. Counsel did not submit that the applicant's psychological state required moderation of general or specific deterrence.

42 In the light of the course which counsel for the applicant pursued at the plea, I do not think it can now be said that the sentencing judge fell into error.

43 A ground of the application for leave to appeal against sentence, which was added at the hearing of the application, was that the applicant's status as a prisoner in protective custody meant that a different sentence should have been imposed.

44 It is evident from his sentencing remarks that his Honour was aware that the applicant was in protective custody, although it was not the subject of submissions made to him during the course of the plea and no evidence was led as to the circumstances constituting the protective custody in which the applicant was held. In my view, the sentence itself does not indicate that this factor was not given appropriate weight.

45 The third ground of the application for leave to appeal against sentence is that the sentencing judge erred in imposing individual sentences and a total effective sentence which were manifestly excessive.

46 Counsel for the applicant relied upon a number of significant mitigating factors. The applicant was 46 years' old and had no prior convictions. He had a good work history. The sentencing judge considered that the risk of re-offending was low. The applicant had a traumatic upbringing marked by the death of his mother when he was very young and his violent and sexually abusive father. After several attempts the applicant had achieved a stable relationship. He suffered from chronic mental health problems. Counsel relied upon statistics which disclosed a median total effective imprisonment for incest of six years and three months and that the most common sentence was imprisonment for a period of five years with a non-parole period of three years.

47 On the other hand, there were a number of aggravating circumstances. The complainant was aged between five and six years when the offending took place. The applicant breached the trust reposed in him as a stepfather. The offending escalated in nature over an extensive period and took place regularly. Victim impact statements reveal the serious and ongoing effects of the applicant's conduct upon the complainant and her mother. The applicant was to be sentenced as a serious sexual offender after the convictions on the first two counts. In all the circumstances, I consider that the individual sentences and the total effective sentence were available to the sentencing judge in the exercise of a reasonable sentencing discretion.

48 The last ground of the application for leave to appeal against sentence is that the sentencing judge erred in imposing a non-parole period that is disproportionate to the head sentence.

49 The non-parole period was approximately 77 per cent of the term of the head sentence. Counsel for the applicant submitted that there were factors which called for a proportionately longer period of supervision of the applicant on parole: the applicant's lack of prior convictions, the low prospect of his re-offending, his history of chronic mental health conditions and the level of support available to him upon his release in the community. Counsel said that current sentencing practice was generally to set a non-parole period of between 60 and 66 per cent of the head sentence, increasing to 75 per cent in the worst category of case.[11] The prospect of rehabilitation is an important consideration.[12]

50 Rehabilitation is not the only matter to be taken into account in fixing a non-

parole period. The circumstances of the offence remain relevant. The purpose of fixing a non-parole period was described by the High Court in Power v R[13] as:

To provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum term that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.

The purpose of fixing the non-parole period is not concerned solely or primarily with the prisoner's prospects of rehabilitation. It remains the minimum term to be served having regard to all the circumstances of the offence.[14] In the present case, in the light of the applicant's offending, I do not think that the non-parole period constituted error.

51 For the foregoing reasons I would refuse leave to appeal against sentence.

52 I agree that the applications should be dismissed for the reasons given by Buchanan JA and Robson AJA.

53 I have had the advantage of reading in draft the reasons of Buchanan JA. I agree that the application against conviction should be dismissed for the reasons given by his Honour. I also agree that the application against sentence should be dismissed for the reasons he gives.

54 I wish to add some observations on ground one of the application against conviction. In doing so I adopt the facts and circumstances relevantly contained in Buchanan JA's reasons.

55 Ground one contends that the trial judge erred in ruling that a previous representation purportedly made by the complainant was admissible, and in particular that the evidence:

(i) was 'sufficiently probative' pursuant to s 41D(2) of the Evidence Act 1958;

(ii) was admissible to both 'prove the truth of the fact contained in the representation' and to 'support the credibility of the child complainant as a witness' pursuant to s 41D(4) of the Evidence Act 1958; and

(iii) should not be excluded in the exercise of the Court's discretion.

56 The trial judge summarised the complainant's allegations and the evidence the Crown sought to lead from her mother as follows:

1. The details of the relevant parts of EJ's evidence can be summarised as follows: (i) sexual offending commenced after the family had moved to Forest Hill but before she started school; (ii) the nature of the first acts was digital penetration of her vagina by the accused; (iii) later other sexual acts occurred; (iv) the sexual acts occurred regularly but not every night; (v) on the occasions that sexual acts occurred it may be one, all or a combination of the five different acts she spoke of; (vi) when the digital penetration first commenced she was confused about what was happening; (vii) the digital penetration of her vagina caused her pain.[15]
2. She said in answer to questions while being cross-examined that although she felt pain, she did not tell anyone, and in particular her mother, that she had pain in her vagina, but rather she just put up with it. In fact the evidence establishes that she did not tell anyone of the sexual abuse until eight to nine years later. The point here is that at the time, or around the time, of the commencement of the sexual abuse by way of digital penetration, EJ's evidence is that she did not tell anyone of the pain in her vagina.[16]
3. The evidence that the prosecution seek to lead from the mother, MC, is that MC remembers that at a time after the family moved to Forest Hill, but prior to EJ starting school, EJ told MC that she had a sore vagina. MC said that she attributed this to EJ being a bit lax with her hygiene. She said that she put some cream on EC's vagina and reminded her to wipe herself. MC said that EJ told her of having a sore vagina on more than one occasion, but she could not say how many. She was adamant under cross-examination that she had not simply come to a belief that EJ told her these things at a much later time and under the influence of knowing that her daughter made significant allegations of a long period of sexual abuse. She was also adamant that she did not concoct this evidence in order to provide support for EJ's complaint in the context of a serious criminal investigation.

57 As indicated above, during the special hearing, the complainant said her vagina was sore through the actions of the applicant but denied telling anyone about being in pain at the time at the time of the offending. In that respect the complainant's evidence did not corroborate her mother's evidence save for fact that the complainant had experienced pain to her vagina.

58 The Crown sought to admit the evidence of the complainant's mother pursuant to s 41D(1) of the Evidence Act 1958 ('the Act') as an exception to the hearsay rule as a previous representation made by a child complainant.

59 Pursuant to s 41D(2) of the Act, in order for such evidence to be admissible, the Court has to be satisfied that '... the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.'

60 Pursuant to s 41D(4) of the Act, evidence of the kind referred to in s 41D(1) of the Act is admissible:

(a) to prove the truth of the fact contained in the representation; and

(b) to support the credibility of the child complainant as a witness.

61 The Crown sought to have the evidence admitted as evidence of the truth of the content of the representation and as support for the complainant's credibility. The Crown sought to have the jury to accept:

(a) that the complainant said the words to her mother and her mother heard them;

(b) that the complainant did in fact have a sore vagina at this time;

(c) that the only reasonable inference to draw was that her sore vagina was because the accused was digitally penetrating her at the time; and

(d) her sore vagina and her raising it with her mother provides support for her credit generally when she alleges that all the sexual acts did occur, in particular those on the presentment.

62 The trial judge ruled that the purported representation of the complainant to her mother was admissible for both purposes as provided for by s 41D(4) of the Act.

63 The applicant contends contrary to the trial judge's rulings that:

(1) The purported representation was not 'sufficiently probative' to render it admissible pursuant to s 41D(4)(a) of the Act as proof of a fact in issue;

(2) The purported representation was too ambiguous to be admissible to support the credit of the complainant pursuant to s 41D(4)(b) of the Act;[17]

(3) Section 41D(1)(a) contemplates that the child complainant is available to give evidence 'about the existence of a fact of which he or she had personal knowledge and that he or she intended to assert by the representation'.

(4) Section 41D should not be extended to purported representations concerning uncharged acts.

(5) The learned trial judge erred in not excluding evidence of the purported representation in the exercise of his discretion.

64 In my opinion, for the reasons elaborated on below, the learned trial judge did not err in so ruling.

65 In Papakosmas v The Queen[18] the High Court of Australia considered the nature and purpose of evidence of complaint in a sexual assault case. In the judgment of Gleeson CJ and Hayne J the application of s 66 of the Evidence Act 1995 (NSW) to evidence of complaints made by the complainant in a rape trial was considered. Intercourse was not in issue. The issue was one of consent. The victim had made the complaints to witnesses almost immediately after the alleged rape at her employer's Christmas party.

66 Before considering the application of s 66, Gleeson CJ and Hayne J reviewed the common law rules relating to the admission of complaint evidence in cases involving alleged sexual offences. They said:[19]

From ancient times, the common law permitted a court to receive evidence of recent complaint in cases involving alleged sexual offences. However, if such evidence had been treated as evidence of the truth of the facts asserted in the complaint, then it would have infringed the rule against hearsay. Whether or not evidence of a statement made out of court is hearsay depends upon the use that is sought to be made of the evidence. Under the rules of evidence developed by the common law, it was the potential use of evidence of a statement made out of court as evidence of the truth of what was asserted in the statement that made it hearsay. The common law did not create an exception to the rule against hearsay by permitting evidence of complaint to be used for a hearsay purpose. Rather, it permitted such evidence to be used for another purpose. The rule permitting such use was an exception to the rule relating to the admissibility of evidence of prior consistent statements. (citations omitted)

67 Gleeson CJ and Hayne J said that the purpose for which complaint evidence could be received was explained in R v Lillyman[20] where Hawkins J said:[21]

It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint, not on oath, nor made in the presence of the prisoner, nor forming part of the res gestae, can be admitted. It clearly is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains. (emphasis added by Gleeson CJ and Hayne J)

....

The evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness-box negativing her consent, and affirming that the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her. The jury, and they only, are the persons to be satisfied whether the woman's conduct was so consistent or not. Without proof of her condition, demeanour, and verbal expressions, all of which are of vital importance in the consideration of that question, how is it possible for them satisfactorily to determine it? [22]

68 Gleeson CJ and Hayne J confirmed that at common law the rule against hearsay did not yield to evidence of complaint and 'judicial comments as the use of such evidence need to be understood in that light.'

69 Gleeson CJ and Hayne J said that it was the rule against hearsay that produced the consequence that evidence of complaint could not be used in proof of the truth of the facts asserted in the complaint. It is useful to quote their observations in full.

[20] Insisting upon the observance of the common law rule against hearsay, whilst, at the same time, receiving evidence of recent complaint, and instructing juries, consistently with Lillyman and Kilby, as to the use that could be made of such evidence, involved the drawing of a distinction which juries might not have found easy to comprehend or apply.

The facts of the present case provide a good example. The issue was that of consent. There was no dispute that sexual intercourse had occurred between the appellant and the complainant. There was evidence, from the complainant herself, and from a number of witnesses, that almost immediately after the intercourse had occurred, the complainant was in a very distressed condition, crying uncontrollably, and saying that she had been raped. Evidence of her condition, and her distress, was admissible, and in the circumstances could be considered by the jury in determining whether or not she was telling the truth when she said that she had not consented to what occurred.

However, when it came to the matter of her statements that she had been raped, at common law a jury would have been directed that they could consider such evidence, not as evidence of the truth of what she was asserting, but as evidence which had a bearing upon her credibility, and in particular, upon the consistency of her behaviour and her allegations.

[21] None of these questions would have arisen, and none of these distinctions would have been drawn, if evidence of complaint were simply irrelevant. Rules of exclusion of evidence, such as the hearsay rule, only arise in the case of evidence which is otherwise relevant. If evidence of complaint were irrelevant, it would not be necessary to invoke the rule against hearsay in order to exclude it, and reception of the evidence could not possibly be regarded as involving an exception to the hearsay rule or to the rule against reception of prior consistent statements.

The primary rule of evidence is that what is not relevant is not admissible. It would have been unnecessary to go past that rule. The reason why evidence of complaint could not be treated as evidence of the facts asserted in the complaint was not that such evidence was irrelevant, but that to receive it for that purpose would be to receive it for a hearsay purpose. It was the rule against hearsay which produced the consequence that evidence of complaint could not be used in proof of the truth of the facts asserted in the complaint. When such evidence was received, it was dealt with in a manner regarded as consistent with the hearsay rule.

70 Gaudron and Kirby JJ decided the issue before them on the exception to the common law principle of hearsay of res gestae. McHugh J agreed that recent complaint evidence or its absence was relevant to, but not decisive of the credibility of the complainant's evidence in sexual assault cases 'because the making of an early complaint is regarded as being consistent with what a complainant would do if he or she had been assaulted as alleged.'[23]

71 As discussed above, at common law evidence of this nature was only admissible on the issue of the complainant's credibility. It was not admissible as evidence of the facts alleged in the complaint. Section 41D now provides that evidence of the complaint may be used 'to prove the truth of the fact contained in the representation.' This is a statutory exception to the common law hearsay rule.

Was the representation sufficiently probative?

72 Section 41D is directed to evidence of previous representations made by child complainants. I would not expect the legislature intended to constrain the common law principle that evidence of a sexual complaint was admissible to enable the jury to judge for themselves whether the conduct of the complainant was consistent with her testimony on the alleged offending conduct, as explained in Papakosmas v The Queen. At common law, the evidence was admissible to support the credit of the complainant. Accordingly, assuming s 41D allows evidence in circumstances where it was permissible at common law, the evidence would be sufficiently probative if it was evidence of conduct that was consistent with the complainant's testimony on the alleged offending conduct.

73 I will put to one side for the moment the issue that the complaint only went to uncharged acts.

74 In this case, the complainant's complaint about to her mother that her vagina was sore would be would be consistent with the complainant's testimony on the alleged conduct of the applicant and would have been admissible at common law.

75 The section also allows the evidence to be admissible as proof of the truth of the fact contained in the complaint. At common law, the complaint was not evidence of the fact contained in the complaint. In my opinion, the legislature has sought to overcome that rule by s 41D in the case of sex offences against children.

76 The fact contained in the complaint was that the complainant had a sore vagina that she experienced at the time of the alleged uncharged acts. If admissible the jury was entitled to treat that fact as probative of the uncharged acts that were relevant to the jury's evaluation of the complainant's evidence of the offending conduct.[24]

77 Without deciding the precise limits of what is meant by 'sufficiently probative', in my opinion it covers the complaint made to the mother about the complainant's sore vagina, as such evidence would have been admissible at common law to support her credibility on her evidence about the offending conduct and it is probative of a fact in issue being the conduct of digital penetration of the vagina by the applicant that is relevant to proving the uncharged acts, and is thus relevant to proving the offending conduct.

78 For the reasons given by Buchanan JA, I do not accept this contention.

Does s 41D require the complainant to give evidence of the representation?

79 In The Queen v RH[25] this Court considered the admissibility of a complaint made by the complainant, who was under 16, to her mother on the day after the last of the alleged incidents of incest and assault by her stepfather. The complainant herself gave evidence that she made no such complaint to her mother. Her mother had mentioned the complaint in her statement to the police but did not give evidence of it in her evidence-in-chief. The complaint made by the daughter to her mother on the day after the last incident was brought out in cross-examination of the mother by counsel for the accused.

80 On application, the accused contended that evidence of the complaint was not admissible as evidence of a recent complaint because the complainant expressly stated that no such conversation took place. Gillard AJA, with whom Chernov and Vincent AJA agreed, held that the evidence of the mother was admissible as evidence of a recent complaint despite the complainant giving evidence that she did not make such a complaint.

81 Gillard AJA said that it was well established that a complaint made to a third party is admissible notwithstanding that the complainant does not give evidence of the complaint. He referred to the High Court's decision Breen v The Queen.[26] In Breen v The Queen[27] the High Court of Australia, comprising Barwick CJ, Stephen and Mason JJ, heard an appeal as of right by an appellant convicted of rape in the Northern Territory. The appeal was on the papers. No oral argument was heard.

82 Several witnesses gave evidence of recent complaints by the victim that the accused had raped her. The complainant gave evidence of one of the complaints but not of the others that were led at the trial. The applicant complained of the admission of the complaints. The applicant did not distinguish between the one that the complainant gave evidence of and the others. The Court said:[28]

There is no doubt, in the Court's opinion, that each of the complaints by the woman concerned, of which evidence was given, satisfied the requirements of the law with respect to the admissibility of complaints in cases of rape and sexual assault. None of them became inadmissible because the woman concerned did not herself give evidence as to the making of all of them. She did give evidence of the rape and indecent assault.

83 Breen v The Queen[29], however, did not concern a case where the complainant expressly said that she did not make the complaint which was ultimately left to the jury as evidence of recent complaint.

84 In The Queen v RH, Gillard AJA said that as the evidence of the complaint went to the credibility of the complainant it must follow that the evidence of the recent complaint is not admissible unless evidence of assault is given by the complainant. He said that evidence of complaint could have no effect if the complainant did not give evidence: 'The complaint would have no evidence to support.' In making this statement, Gillard AJA also referred to Ugle v The Queen.[30]

85 The accused contended that there was a distinction between cases where the complainant gave no evidence of having made a complaint and a case where the complainant's evidence was that she did not make any such complaint. Gillard AJA rejected that submission. He said that the 'rationale for permitting the evidence to be given is that it provides some evidence of the consistency of the complainant's version of events.' He said:[31]

It is essential to the admission of the evidence that she [the complainant] does give evidence implicating the accused in the sexual activity. But it is not essential to the admission of the evidence of recent complaint that she [the complainant] has a memory of making the complaint. There can be any number of reasons why a complainant may have no memory of having made the complaint. Familiar examples would be the passage of time, the trauma of the event, and the deliberate decision to exclude all distressing matters from her memory. In my opinion, the evidence is admissible even though the effect of the complainant's evidence is that she made no complaint.

86 Gillard AJA said that a complaint in a sexual case is admitted as an exception to the hearsay rule going to the credit of the complainant. His Honour's observation that the evidence is admitted as an exception to the hearsay rule is not consistent with the observations of Gleeson CJ and Hayne J in Papakosmas v The Queen.[32] Nevertheless, in my view, Gillard AJA was correct to find that evidence of complaint was admissible even if the victim gave evidence she did not complain. The purpose of the evidence is to assist the jury to assess whether the conduct of the complainant was consistent with her testimony on oath given in the witness box affirming the acts complained of and to evaluate the credibility of her evidence. The fact that the complainant says she did not make the complaint is a matter for the jury to assess in carrying out its duties.

Should section 41D be extended to representations concerning uncharged acts?

88 There is nothing in the wording of s 41D that would exclude such evidence. Evidence of uncharged acts are only admissible if relevant to a fact in issue. Thus the only question is again one of whether the evidence is sufficiently probative of a fact in issue.

Did the trial judge err in not excluding this evidence?

90 In my opinion the probative value of the representation evidence was not outweighed by the prejudicial nature of the evidence. In Papakosmas v The Queen,[33] McHugh J explained the nature of prejudicial evidence. He said:

[91] Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out:

'The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.' (footnote omitted)

[92] In its Interim Report, the Australian Law Reform Commission explained:

'By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.' (Citations omitted)

91 In my opinion, the representation evidence did not fall into that category. There was no material risk that the evidence would be misused by the jury. The learned trial judge did not err in not ruling that the prejudicial aspects of the representation evidence outweighed its probative value.

92 Accordingly for these and the reasons given by Buchanan JA, I would reject ground 1 of the proposed grounds of appeal.

[1] R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 222, [25].

[2] [1936] HCA 40; (1936) 55 CLR 499. See, for example, R v Moustafa [2010] VSCA 40, [16]-[17].

[3] See Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 315, [55]-[57].

[4] Cf Breen v R [1976] HCA 15; (1976) 180 CLR 233, 234 (Barwick CJ, Stephen and Mason JJ); R v RH [2004] VSCA 231, [50].

[5] [2006] VSCA 231; (2006) 166 A Crim R 366, [25].

[6] (1998) 105 A Crim R 27, 56.

[7] No evidence of good character was led at trial. The evidence of good character led at the hearing of the plea is irrelevant.

[8] Libke v R [2007] HCA 30; (2007) 230 CLR 559, [113]. See also R v Klamo [2008] VSCA 75; (2008) 18 VR 644, [40] (Maxwell P).

[9] See R v Smith (1987) 27 A Crim R 315, 317.

[10] R v van Boxtel [2005] VSCA 175; (2005) 11 VR 258.

[11] See R v Tran [2006] VSCA 222, [27]-[28].

[12] See R v Detenamo [2007] VSCA 160, [27] (Redlich JA).

[13] [1974] HCA 26; (1974) 131 CLR 623, 629.

[14] A-G v Morgan (1980) 7 A Crim R 146, 155 (Jenkinson J).

[17] Kilby v R [1973] HCA 30; (1973) 129 CLR 460, 472; Ugle v R [1989] HCA 55; (1989) 167 CLR 647, 649; R v Stoupas [1998] 3 VR 645, 651.

[18] [1999] HCA 37; (1999) 196 CLR 297.

[20] [1896] 2 QB 167.

[24] B v R [1992] HCA 68; (1992) 175 CLR 599 at 610 (Deane J); R v Beserick (1993) 30 NSWLR 510; R v Vonarx (1999) 3 VR 618; and R v AH (1997) 42 NSWLR 702.

[25] [2004] VSCA 231 (Chernov and Vincent JJA and Gillard AJA).

[26] [1976] HCA 15; (1976) 180 CLR 233.

[27] [1976] HCA 15; (1976) 180 CLR 233.

[29] [1976] HCA 15; (1976) 180 CLR 233.

[30] [1989] HCA 55; (1989) 167 CLR 647, 649.

[31] [2004] VSCA 231, [50].

[32] [1999] HCA 37; (1999) 196 CLR 297.

[33] [1999] HCA 37; (1999) 196 CLR 297.