R v Aston-Brien [2000] QCA 211

Director of Public Prosecutions (Queensland) for respondent

[1] THE COURT: The appellant was convicted of rape and sentenced to six years imprisonment. He appeals against his conviction and seeks leave to appeal against sentence.

[2] The complainant was a 20 year old woman who from time to time lived with the appellant and his girlfriend. The complainant was a user of amphetamines at the time of the offence. On the day of the offence she was recovering from injuries suffered two days before when she got out of a moving vehicle as a result of an argument with the driver. She was self-medicating herself with Serapax and codeine phosphate for the two days while she was convalescing.

[3] Her evidence was that she was asleep in the bed normally shared by the appellant and his girlfriend. She had gone to bed wearing only boxer shorts and a T-shirt. She was awakened to find the appellant on top of her. Her boxer shorts had been removed and her T-shirt was up around her throat. The appellant was holding her hands above her head and by the time she woke up he had effected penetration.

[4] The complainant told the appellant to get off, which he did. As he was getting dressed he threw a half gram packet of amphetamines at her and invited her to share it with his girlfriend. However the complainant said that she was so upset that she used all the amphetamines by injecting herself.

[5] Shortly after she had done so the appellant's girlfriend came into the room and an argument ensued about the complainant's failure to share the amphetamines. No complaint about the appellant's conduct was made on that occasion. However, later that day or the next day the complainant told the appellant's girlfriend what had happened. This led to a fist fight between the two women.

[6] About six months later the complainant was in police custody and made the complaint which led to the appellant's arrest. The defence was that the complaint was fabricated. The appellant did not give evidence.

[7] The ground in the appeal record that the verdict was unreasonable and could not be supported was abandoned and by leave three other grounds were substituted. They were:

1. that the learned trial judge erred in failing to give directions as to the use to be made of the evidence of complaint by the complainant to the appellant's girlfriend.

2. That he erred by failing to properly put the defence case. This was based on the proposition that the summing-up proceeded on the basis that the issue in the case appeared to be consent. However following an application for redirections the learned trial judge redirected the jury that the defence case was simply a case that the events did not occur at all and that there was no acceptance by the defence that carnal knowledge took place but with consent. He repeated this on two other occasions within the space of the two minutes that the redirection took. We are satisfied that the redirection cured the original misapprehension as to the nature of the defence case and that there is nothing in this ground.

3. That he erred by failing to give directions about the use that the jury could make of evidence tending to show that the appellant was a person of bad character.

[8] The trial was conducted on the basis that the conversation with the appellant's girlfriend which led to the fist fight was not a recent complaint. Evidence of recent complaint is admitted not as evidence of the facts in issue but as evidence of consistency which buttresses the credit of the complainant. Whether the assumption upon which this exception to the hearsay rule was based, that the victim of a sexual offence will complain at the first reasonable opportunity, is accurate has been questioned (Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145, 147). The judgment of Gaudron and Gummow JJ points out that where a direction is given that there may be good reason for delay in making a complaint the jury may well take the view that the evidence of prior consistent complaint enhances the credit of the complainant even though the complaint was not made until well after the events in issue. It also points out that where such a direction is given and the prosecution case depends on the credibility of the complainant, it is difficult to envisage circumstances in which it might be said that the wrongful admission of evidence of a prior consistent complaint could not enhance his or her credibility.

[9] While the present case was not conducted on the basis that the allegation made to the appellant's girlfriend was a recent complaint, the fact that there was a statement made which was consistent with the complaint made five or six months later to the police may well, in the absence of a direction to the contrary, have led the jury to reason that the complaint made to the police must be true because she had made an allegation of rape at an earlier time. In a case of recent complaint it would be necessary to give a careful direction as to the use to which the evidence might be put. The fact that the prior statement in this case was not treated as a recent complaint cannot render an appropriate direction unnecessary for that reason alone. In Jones v The Queen [1997] HCA 12; (1997) 71 ALJR 538 the judgment of the court accepted that the account which the complainant had given to others of what had occurred was linked to the veracity of the account given by her to the jury. The joint judgment continued:

"Unless the trial judge made clear to the jury the limited use they might make of the evidence of the complainant of her complaints and the evidence of those to whom she complained there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged. The distinction may not be an easy one for a jury to grasp but this does not detract from the need for the distinction to be carefully explained. Unless explained the evidence might well have played an important part in the jury's assessment of credibility."

[10] In the present case it is not discernible from the record whether the evidence emerged unexpectedly in the evidence-in-chief or was led advisedly. No obvious tactical advantage was taken of the evidence by the defence.

[11] The respondent relies on Robinson (1998) 102 A Crim R 89 in which Cullinane J with whom Williams J agreed distinguished Jones. Robinson was a case where the first complaint was made three years after the relevant events allegedly occurred and the police investigation proceeded immediately thereafter. It is unlike the present case in that there was no reference made to the offences between the time of their commission and the time when the investigation began. In the present case reference was made quite close in time to the relevant event. Then there was a lapse of five or six months before the investigation began following another complaint.

[12] In Robinson the majority held that a direction which referred to a submission from counsel that the absence of recent complaint may show inconsistency of the conduct on the part of the complainant but the possibility that there might be reasons why a complaint was not made should also be considered was sufficient.

"... that evidence having been admitted, there is in my respectful opinion, substance in the further submission by Mr Rafter contained in ground 4 that the learned trial judge failed to give the jury an adequate direction with respect to the complaint evidence that was admitted. It is of course quite true that in no sense could any of the evidence referred to by Mr Rafter be regarded as being recent. The appellant has contended that the learned trial judge ought to have informed the jury that any complaint made by the complainant should not be treated as confirmatory proof of what was alleged against the appellant.

In my respectful opinion, it is no sufficient answer to distinguish the High Court decision in Jones [1997] HCA 12; (1997) 71 ALJR 538 on the basis that the complaints therein met the test of recent complaints which required a special direction as to the use of that evidence. What is important is the nature of the evidence which was admitted, it being out of court statements by the complainant that he had 'complained' on various occasions in 1994 and in 1996. As indicated, those statements were clearly inadmissible, as indeed would be evidence of any complaint unless it was exceptionally admitted as 'recent': Kilby [(1973) [1973] HCA 30; 129 CLR 460] 469 at 466. But that is purely a question of admissibility of evidence and does not govern the character and use of complaints made by a complainant, whether recent or otherwise, once the evidence is admitted and not excluded, even if this was the course adopted by counsel for the appellant at the trial for tactical reasons.

It is well known that lay people often wrongly conclude that because a person has repeatedly said that something has occurred, therefore it must for that reason be true. They are often inclined to the view that mere assertion, particularly if repeated, necessarily means that what is asserted is true."

[14] On appeal to the High Court [1999] HCA 42; (1999) 73 ALJR 1314 the judgment of the court, in dealing with the ground that there should have been a direction that statements in evidence that the complainant had complained to various people did not constitute evidence of the facts complained of, referred to the possibility that the evidence had been allowed in for tactical reasons and to the absence of a request for a direction on the matter and said the following:

"This may have been because, having regard to the way the trial was conducted, it was not considered that there was any real danger that the jury might treat the complaints to the mother and the friend as evidence of the truth of what the complainant alleged. There was no evidence of recent complaint; a point that was emphasised by trial counsel in his short address. Furthermore, in relation to what the complainant told the police as to what had happened to him, the position was complicated by the fact that he verified that information in his evidence in court. The judge should have directed the jury as to the use that could properly be made of the interview, but the majority in the Court of Appeal were correct to conclude that, in the circumstances, this omission did not warrant a quashing of the convictions."

[15] In the present case the sequence of events was different in that there was a quite early reference to the alleged offence to the appellant's girlfriend followed some months later by a complaint to the police. In the circumstances there was a significant risk of the kind referred to in Jones, if no warning was given, that the jury may well take the view that the evidence of the prior consistent complaint was evidence of the facts complained of.

[16] The distinction which the High Court in Jones rightly said may not be an easy one for the jury to grasp is between using the complaint as evidence of the facts complained of (impermissible) and using it to prove consistency of conduct of the complainant (permissible if the complaint is recent): at 539. We mention this because the description by Gaudron and Gummow JJ in Suresh of evidence which would enhance the complainant's credibility (at [6]) is arguably descriptive of either alternative and for that reason may be misleading in this context.

[17] The summing-up was deficient in not giving an appropriate warning. It is not a case where the proviso can be applied. The appellant is entitled to a new trial on this ground.

[18] With regard to the third ground of appeal it was submitted that there should have been a direction about the use the jury could make of evidence tending to show that the appellant was of bad character. The bad character was said to be his involvement of drugs, as exemplified by the evidence that he had given the complainant a packet of amphetamines immediately after the alleged rape. It was submitted that the jury should have been told that his bad character could not be used as a fact upon which to base guilt.

[19] The appellant's counsel also relied on the fact that the learned trial judge had invited the jury to consider whether a reason for giving the complainant the drugs was to buy her silence and had given a direction as to the use of the complainant's convictions for dishonesty in assessing credibility.

[20] The evidence concerning the amphetamines was an integral part of the prosecution case against the appellant for the reason adverted to by the learned trial judge. While it would not have been inappropriate for him to have reminded the jury that although the appellant was engaging in unlawful activity by supplying the drugs to the complainant, they should not use the fact that the conduct was unlawful as a reason for concluding that the appellant was guilty of rape, the fact that it was not given did not result in an error which vitiates the trial.

[21] As the appeal against conviction is to be allowed it is unnecessary to comment further on the application for leave to appeal against sentence.

[22] The order is that the appeal against conviction be allowed and a new trial ordered.