R v Camilleri [1999] VSC 160

8. So much I understand to have been accepted by counsel who appear on behalf of the accused man. However, objection has been taken by them to the introduction of evidence of complaints made by the witness, on the basis that such evidence can only be led in cases of sexual offences. A distinction has been drawn in this context between cases in which there is a prosecution before the court for a sexual offence and those in which the charge under consideration is not a sexual offence per se, but the proof of which may involve the commission of sexual offences.

11. When the matter was first raised, I expressed doubt as to the admissibility of evidence of recent complaint in the circumstances present here, as I was unaware of any situation in which such evidence could be adduced that did not involve a charge of a sexual offence being before the court. In the relatively short time which has been available to investigate this aspect, I have not encountered a case of the admission of evidence of recent complaint where that was not the case.

14. If the history of the principle is considered, this state of affairs is perhaps not surprising. I observe that Wigmore stated:

"Down to the beginning of the 1800s, evidence of this sort was received by the courts as a matter of old tradition and practice, with little or no thought of any principle to support it. The tradition went back by a continuous thread to the primitive rule of hue and cry."

Wigmore (3rd ed.) Vol. IV, p.219, para.1134.

18. In other words, in a case where it was alleged that a sexual offence had been committed, it was expected that the victim would have immediately responded by making a complaint about it. The presence or absence of complaint was apparently perceived as relevant to the likelihood that the offence had been committed. Later the courts began to view such evidence as supportive of the credit of a complainant in cases of sexual assault. With the development of more modern principles, evidence of complaint of sexual assault became one of the two major exceptions to the rejection by the courts of evidence of the making of prior consistent statements, the other being the rebuttal of suggestions of recent invention. The third possible exception mentioned in the texts, that is, that the statement constitutes part of the res gestae, does not appear to me to be an exception at all.

21. Whilst, as Mr Hicks pointed out in the course of his submissions, there is little logical justification for the restriction of the principle in the fashion in which it appears to have been confined to the present time, I consider that those restrictions clearly exist. Barwick, C.J. in Kilby v. R. [1973] HCA 30; (1973) 129 C.L.R. 460 at p.472 referred to "the admission of a recent complaint in cases of sexual offences" as "exceptional in the law of evidence". In this Court, in the matter of DeB v. DeB [1950] VicLawRp 44; (1950) V.L.R. 242, it was made clear that the principle had no application in civil cases. That matter involved a divorce petition on the ground of sodomy which was, of course, at that time a serious sexual offence.

24. In expressing this view, I am mindful of the force of the point made by Mr Hicks that had Miss Gandarias given evidence of the same kind of behaviour within this state, then there is a distinct possibility that a further charge may have been present on the presentment and the evidence admissible on the basis of the principles that I have mentioned.

27. I do not see that I am in a position to rewrite the law of evidence in this area.