Ground 2
26 This ground was:
"The direction of the learned trial judge in relation to evaluating the credit of the complainant having regard to delay in complaint was inadequate."
27 The appellant submitted:
"The judge was obliged to give a direction in view of delay in complaint that the appellant had been placed at a disadvantage in defending himself and indicate what those disadvantages were. See Longman v The Queen 1989 168 CLR 70). The judge did this (s/u p.26).
The judge was also obliged in view of the delay in complaint to give two further directions. One is a statutory direction indicating a complainant may have good reason not to immediately complain. (See now s. 107 Criminal Procedure Act 1986, and before this, corresponding terms in s. 405B Crimes Act 1900). The judge did this (s/u p. 27).
The other direction is to be given to balance the former in favour of an accused. It is to the effect that delay in complaint may be taken into account in assessment of the credit of the complainant
That a direction dealing with delay was proper was noted in Kilby v The Queen (1973) [129] CLR 460, where Barwick CJ said at 465 it would '… be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity.' This was a decision before provision in the nature of s107. This passage was cited with approval in Crofts v The Queen (1996) 186 CLR 427 at 447, dealing with a s.107 type provision. The delay in that case was 6 months to 6 years. In this case it is 13 to 16 years.
The trial judge here gave a direction touching on these principles which was inadequate. He directed in this regard (s/u p.26):
I must warn you the mere absence of complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of the complainant, but it does not necessarily do so . There may be good reasons why a person who has been sexually assaulted does not complain to anyone . (Emphasis added)
It is respectfully submitted that the effect of this direction is to 'sandwich' the Kilby/Croft direction (words emphasised) in favour of the accused, between two s.107 type directions in favour of the complainant. The s.107 direction was then repeated after the Longman direction, introduced with the words '… Now the other matter about complaint is this …' (s/up.27pt7). This has so diminished the Kilby/Croft direction as to deny the appellant the balance in the direction to which he was entitled, and create an imbalance in the competing directions.
The Croft principle was considered in Regina v DJK NSWCCA 8th October 1997. The delay in complaint there was seven years. Hunt CJ at CL observed (p.9) in relation to a Kilby direction '… Such a direction remains appropriate notwithstanding the provision of s.405B.' He then went on to observe in light of Crofts '… the High Court - accepting that such a direction is appropriate - has now said more specifically that the duty to give such a direction arises … to restore a balance of fairness . (Emphasis added)
The part of the direction that related to delay in complaint affecting credit was further diminished by the attachment of the words ' … but it does not necessarily do so.'
Counsel sought no redirection in relation to this point. It is submitted however that the matter is so important that the absence of balance has led to a miscarriage of justice. In relation to Ground 2, the leave of the Court is sought. (Rule 4)."
28 There is a degree of unreality in this submission. A "complaint" in this type of case means a statement by the victim to a third party making the allegation against the accused which is made in the victim's testimony at the trial. Failure to complain for a long time may have a negative impact on the credibility of the victim's testimony. Speedy complaint may enhance it. While these considerations were unquestionably material in relation to all counts except Count 6 and Count 6A, and may well have significantly contributed to the acquittals on all those other counts, they had more limited materiality in relation to Count 6, and very little materiality in relation to Count 6A. That is because the credit of the person complaining about sexual intercourse assumes a less crucial significance if another witness, whose evidence is itself corroborated by two other persons, observes matters pointing very strongly to the fact that sexual intercourse had just ceased. There would be little point in the complainant complaining to her aunt about the appellant's behaviour when the aunt had just seen it for herself. Similarly, there would be little point in the complainant complaining to her mother when her aunt had just rushed off to see her mother and told her mother something which had had the result of her stepfather hurrying back to take her home.
29 Leaving that consideration aside, however, the criticism of the trial judge's summing up based on a supposed failure to give the appellant the benefit of a warning about what flowed from her lack of complaint is to be rejected. The totality of what the trial judge said was as follows:
"Now there is another important issue in this case, and that is one relating to lack of complaint. There is, in effect, no evidence of complaint. Julie did not complain about what was happening. It is argued that you would have expected her to have complained. You would have expected her to tell her aunt or her mother or her cousin who she used to go and see, that these sort of things were going on. That is what you would have expected from her. That did not happen. And that is one of those matters, it is argued, which you should consider when you are looking at whether or not you can accept her evidence beyond reasonable doubt. On the other hand, she has said to you she did not complain. She said she was only young, she was very fond of her aunt, she did not think she would be believed, and, in effect, she did not complain.
Now that is a matter you will have to look at and consider when you are looking at her evidence. But there is a matter of law which I must put to you. I must warn you the mere absence of a complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of the complainant, but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted does not complain to anyone. It is important, however, that I give you certain warnings. It is important that you appreciate fully the effects of absence of complaint on the ability of the accused to defend himself by testing prosecution evidence, to establish a reasonable doubt about his guilt. In this regard you will take into account that these matters happened, or are alleged to have happened many years ago.
What you have to consider is this - and this was a matter which was argued to you with some force - that because of these delays, the delays in making the complaint, the accused has a loss of means of testing the complainant's allegations which possibly could have been open to him had they been made at an early time. Had the allegations been made soon after the alleged event it would have been possible to explore in detail the alleged circumstances, perhaps to adduce evidence throwing doubt upon the complainant's story, or confirming the accused's denial. But because of the delay, that opportunity may have passed.
The evidence of Julie perhaps could not be adequately tested after such a passage of time, and you must look very carefully at her evidence, and be satisfied of its truth and accuracy, bearing in mind there was a considerable delay. It was pointed out to you that the accused was at, or could have been at some difficulty in meeting some of these allegations because of the long lapse of time before a complaint was made. For instance, there may have been a medical examination which could have been held which may have assisted one way or the other. Perhaps there could have been forensic evidence. Perhaps there could have been records. People's minds would be clearer closer to the event. That is a matter you will bear in mind when you are considering the case against the accused.
Now the other matter about complaint is this, that whilst there was no complaint - where there is no complaint or a considerable delay, I am required to say this to you, I must warn you that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and I must also inform you that there may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making a complaint about the assault."
30 This direction is much fuller than was suggested by the appellant's argument. It is not correct to suggest that all the trial judge said was that lack of complaint "may indicate fabrication on the part of the complainant". The first paragraph in the passage just quoted referred to an expectation of complaint. As Wood CJ at CL pointed out in R v Markuleski [2001] NSWCCA 290 at [244], it may be unwise to assume that immediate complaint of sexual assault is always to be expected. However, the direction complied with the law, and even if the direction assumed too much, the assumption made favoured the appellant. That first paragraph in the passage just quoted makes it plain that the failure of the complainant to meet the expectation of complaint left it open to conclude that there was nothing to complain about and that the complainant's testimony that there was had been made up years later. The central significance of the plaintiff's credibility in relation to what she said happened so many years earlier was made plain in that passage. It was also made plain in other passages. Thus at pages 16-17 of the summing up the trial judge said:
"It may be said that this case turns on a conflict between the evidence of the prosecution witnesses, and evidence of the accused, and indeed his witness. And you may ask yourself who is to be believed. But even if you think the prosecution witnesses are probably telling the truth, that does not conclude the issue whether the prosecution has proved the case against the accused. Even if you prefer the evidence of the prosecution, you should not convict the accused unless you are satisfied beyond reasonable doubt of the truth of that evidence. It is, as has been said to you by both counsel, and I will say to you, you must accept on those important points the evidence of Julie beyond reasonable doubt before you can convict.
Mr Fuller said to you that he and Lynette had been together for seventeen years. He denied having sex with Julie. The occasion when Lynette walked into the loungeroom and saw him on top of Julie never happened. She never slapped him across the face. He was not alone in the house with Julie, there was always children there. He told you about Mr Dufty and how he was often there, they would go to the wrecking yard. Julie was often at the house. Sometimes she would come over with her friends, and, in effect, he denied each and every one of these charges.
In a case such as this, I would normally say to a jury, because of the facts surrounding it you must be very careful before you convict the accused. That is, you have a complainant who was a young girl at the time, the incidents are alleged to have happened many many years ago, there was no complaint made for many many years. It is the evidence of one person against another. And having said that, I might point out to you that in relation to sexual offences you may well think that most of those, when they do occur, occur in private, that you do not have a whole lot of witnesses. That is not unusual. And so normally I would say to you, you have got to be very very careful."