R v GG [2004] VSCA 238

Court of Appeal (Vic)|2004-12-17|Before: WARREN, C.J., BATT and EAMES, JJ.A.

CRIMINAL LAW - Sexual offences - Incest - Evidence - Two complainants - Whether statements to school friend by ten year old complainant capable of constituting recent complaint - Complainant 46 years old at time of trial - Witness to complaint unavailable at trial - Statements made two weeks after alleged offence - Whether complaint made at first reasonable opportunity - Admissibility of complaint evidence - Directions - Whether use of complaint evidence by jury subject to finding by them that complaint made at first reasonable opportunity - Uncharged act - Whether evidence of uncharged act ought to have been excluded - Relevance of evidence - Directions as to uncharged act.

I have had the very considerable advantage of reading in draft the reasons for judgment of Eames, J.A. I agree with his Honour that the application should be dismissed for the reasons he gives.

The applicant seeks leave to appeal against convictions on four counts of incest which followed verdicts of guilty returned by a jury in the County Court on 30 August 2002. Although notice of application for leave to appeal against sentence had also been filed, that application was abandoned, by leave, at the hearing. It is unnecessary, therefore, to set out the details of the individual sentences and it is sufficient to record that the learned sentencing judge imposed a total effective sentence of six years three months' imprisonment and fixed a non-parole period of two years six months.

The offences were alleged to have been committed against the applicant's two daughters whom I will call "M" and "E". On this application for leave to appeal we are concerned only with offences committed against M. At his trial the jury had acquitted the applicant on two counts of indecent assault on a girl under the age of 16 years, the complainant being E. As I shall discuss, he was convicted of one count of common assault concerning E.

With respect to M, count 3 was an offence of incest said to have been committed between 12 August 1966 and 31 December 1966. Count 5 was a count of

incest against M said to have been committed between 26 December 1971 and 10 January 1972. Count 6 was an offence of incest against M said to have been committed between 2 January 1972 and 1 March 1972. Count 7 was an offence of incest against M committed between 1 January 1973 and 31 December 1974.

Counts 1 and 2 involved the child E and the applicant was acquitted on both counts. Count 4 was a count of common assault said to have been committed against E between 18 April 1970 and 17 April 1972. In the course of the hearing Mr Morrissey, who appeared for the applicant on the appeal but had not appeared at trial, acknowledged that the application for leave to appeal did not seek to overturn the verdict on count 4.

The complainant M was born in August 1956 and the complainant E was born on 18 April 1959. When they gave evidence at trial E was aged 43 years and M was 46 years old. The applicant's former wife and mother of the two complainants (and also two further children) was called as a witness by the Crown.

M gave evidence of four separate incidents of incest which occurred when she was a child or young teenager. The first occurred when she was 10 years of age. She said the applicant approached her in the kitchen while she was washing the dishes. Her father approached her from behind, lifted her dress, told her to bend over a little and put his penis into her vagina. She said that he told her to "ssh" and just as he was about to finish her mother walked in and said "What are you doing?", to which the applicant responded "Never you mind, just go and get the kids ready". He then pulled his own pants up and pulled the complainant's pants up. He told her not to say anything to anybody and told her to get ready to go and visit her aunt. The complainant said she was not sure how far her father's penis had penetrated her vagina.

She went to her room and got changed and then the family went together to her aunt's house. Whilst there she was not drinking anything and upon enquiry by someone about her lack of appetite said she was not thirsty. The complainant said that whilst she was there she had a private conversation with her aunt but did not mention what had happened. The complainant said that when this event occurred she was in grade 4.

In cross-examination, she said that when she was washing the dishes her mother was getting her sister and brother ready to go out. She agreed that when her father lifted her dress and penetrated her, her mother was not far away but she did not call out to her. She said that when her mother had entered the kitchen and asked her father "What are you doing?" the complainant's underpants were around her ankles. She was bending over slightly and her father's penis was exposed. Her father said "Never you mind, just go and get the kids ready". She said she could not remember if her father ejaculated inside her but then agreed that at the committal she had said that he did ejaculate outside of her vagina, and had used a handkerchief to wipe himself. She agreed that she had not said in her police statement that her father had ejaculated into a handkerchief. She agreed that she was quite close to her aunt, who died in December 2001.

The complainant said she went to school every day in the week following this event and she had a friend at school, "MG" (as I will identify her). She told the jury "I was trying to ask her if her father ever tried to put his penis up her". She said she had that conversation about two weeks after the events of count 3 occurred. She did not know where MG now is and had not seen her since finishing together at primary school. Under cross-examination she said:

"I was trying to ask her if her father ever put his penis up her vagina. I specifically asked her if her father ever tried to put his penis up her vagina and she said to me "What do you mean?" I said "Has your father ever tried to have - has he ever put his penis up you?" She said, "Oh, all the time". "And I did not understand what she meant. I think she tried to say to me that's where the parents have sex. She tried to say to me but I tried to tell her if her father ever tried to have sex with her, but I left it at that".

The complainant agreed that she did not tell MG that her father had sexually assaulted her. Under further cross-examination she gave a slightly different account of the conversation. She said she asked MG "Has your father ever tried anything on you?" It was put to the witness that that was not the same as asking, "Has your father ever tried to put his penis up you", and she said that to her that was saying the same thing.

It was put to her that what she, M, had said to her friend was, "What, your father tried to have sex with you?" She agreed that she did say that, after her friend had said yes to M's query, "Has your father ever tried anything on you?" The witness agreed that her friend MG had replied in a way that showed that she had thought the conversation was about where babies come from. M agreed in cross-examination that she would not have used the word "penis" at that time. She was asked:

"When you spoke to [MG] you agree you didn't tell her that your father had done anything to you?" She answered: `I tried but, no, I didn't.'"

The next offence against M, she said, occurred when the parents had moved to a house in Essendon. She was then 14½. years old. She was living at home at the time of this incident, which occurred when her mother went to hospital to give birth to her youngest brother in 1972. On an afternoon whilst her mother was still in hospital her father sent the other children away to the shop, then closed the doors and windows and grabbed her by the arm, took her to her room and lay her on the bed where he removed her pants and placed his penis in her vagina. M said that she was numb. Then her sister and brother returned from the shops, so her father pulled up his pants and told her to do likewise and to clean up the kitchen.

In cross-examination, she agreed she told the police the event occurred in 1970 but said she got the date wrong. She agreed that there were some differences between her evidence and answers she had given at committal.

The third offence, namely count 6, was said to have occurred to M when she was about 15½ or 16 years of age. She had been with her father rabbit hunting, searching for a lost ferret. She had not wanted to be with him and was terrified being alone in the car with him. They drove some distance until he stopped in the middle of nowhere. Her father left the car and urinated and returned to the car and asked her to sit in the back. She refused, but he grabbed her arm and told her to do so. She said she wanted to go home. He lay her on the rear seat, pulled her jeans and underpants down, pulled his own pants down and put his penis in her vagina. He removed his penis and ejaculated on to the ground and then cleaned himself. She pulled her pants up, as did he, and they then drove home. When they got home her mother asked whether he had found his ferret. He said "No", and the complainant went to her room, crying.

In cross-examination she agreed that some of her details of her evidence differed from her evidence at committal.

The fourth incident, being count 7, occurred about 18 months later than count 6. She was then about 17 years of age and still working as a packer. Her father picked her up from work on the Saturday morning and instead of taking her with the rest of her family to the airport to farewell some friends, he said they had already left for the airport, and he would take her home first, to get changed. She went to her room to get changed and he came in, laid her on the bed, put a pillow under her bottom and had sex with her, entering her vagina with his penis. He removed his penis and cleaned himself with a handkerchief. They then drove to the airport. Her mother asked her why they had been delayed and she said to her mother that her father had taken her home to get changed. She was asked why she said no more to her mother, and she said she did not know why.

In cross-examination she said she had not needed to get changed, and agreed that there were some differences in detail between the evidence at committal and trial. She said that when she arrived at the airport her sister asked her why she was so pale and she told her sister that she had a headache. She had not mentioned that to the police.

During the trial the sister of the complainant, E, gave evidence of an occasion of the family being at the airport and her sister, the complainant, arriving late. She said that the complainant was very, very, distressed and looked like she had been crying. The sister spoke to M and asked her what was wrong but M said "Nothing, I've got a headache."

Although the evidence on count 4 is not now relevant directly to the appeal, since no challenge is made to the verdict, the evidence of E is relevant to one of the proposed new grounds of appeal. E told the jury that on an occasion between 1970 and 1972 when she was 11 or 12 years of age, her father was about to drive off in the car and she came out of the house and yelled at him and said the she would tell the police what he had done to her and what she thought he had done to her sister, that is M. Her father jumped out of the car, grabbed a branch off a tree, stripped it and then chased her into the backyard and whipped her with it across the back of her legs. He said that if he caught her he would kill her. He would have whipped her about four or five times, she said, but then her mother came to stop it from happening. Her mother got between them, so that E could run. The applicant then hit his wife, but the complainant, E, escaped. Her father then jumped into the car and drove off. E said she was very, very, sore for several days.

The applicant was interviewed by police on 24 January 2001 and denied his daughters' allegations. In the course of the interview he was asked about the contents of covert tape recordings which had been made of a telephone conversation with him conducted the previous day by his daughter M, under police supervision. The conversation was largely conducted in the Sicilian dialect of Italian and key passages were the subject of conflicting evidence from an interpreter called by the prosecution and one called by the defence. It is unnecessary to elaborate on this evidence. It is sufficient to say that on one interpretation of the evidence the jury would have been entitled to conclude that the applicant demonstrated an awareness of the nature of the allegations that M was making, in asking "why you did those things when I was little", and did not expressly deny them. Much of the debate about the content of the tapes centred on a phrase used by the applicant about "fantasia": the debate being whether he was describing M's allegation as fantasy or was saying that he had acted pursuant to his own fantasy.

Only one ground of appeal was first raised in the notice of application for leave to appeal by the applicant. That ground was that the verdicts were not supported by the evidence. By a notice dated 16 June 2004, that is five days before the hearing of the application, application was made to amend the grounds of appeal by substituting the following grounds:

"The alleged complaint to [M]

Ground 1(a): The learned trial judge erred in admitting into evidence the evidence of [M] relating to an alleged complaint made to one [MG]. Ground 1(b): The learned trial judge erred in failing to properly direct the jury as to the matters to take into account in deciding whether the words of the complainant [M] constituted a complaint at the first reasonable opportunity.

The early cross-examination of the defence witness Zurzolo

Ground 2: The learned trial judge erred in permitting the prosecutor to interrupt the evidence of the defence witness Zurzolo.

The alleged assault upon the Applicant's wife

Ground 3(a): The learned trial judge erred in admitting into evidence the evidence of [E] of an uncharged assault by the applicant upon his wife [NG] in connection with count 4. Ground 3(b): The learned trial judge erred in failing to properly direct the jury as to the use to be made of this evidence."

The Court granted leave to amend the grounds of appeal by substituting grounds 1 and 3 above, but did not grant leave to add ground 2, as counsel said he did not seek to rely on it.

In her directions to the jury[1] the judge told the jury that they must be satisfied that what M said to MG amounted to a complaint. She invited the jury to consider why a sexually immature 10 year-old girl from an Italian family in the 1960s would have such a conversation with her friend. She suggested that the responses of MG might suggest limited comprehension of either girl as to sexual matters. The judge told the jury that they had to be satisfied that the words, and the context in which they were used, were capable of constituting a complaint of the nature of the events constituting count 3. Next the jury must be satisfied that it was a complaint made at the first reasonable opportunity. The judge suggested that the jury consider whether a child sexually assaulted in those circumstances might have been unable to avail herself of an opportunity to speak to her aunt when an opportunity first arose. Her Honour said to the jury that

"In these circumstances you might expect some lapse of time before making a complaint. You should consider a complainant in M's position would have taken some time to think about what her father is alleged to have done to her and then having sufficient concerns or confidence has then raised it with her girlfriend."

In those circumstances, the judge said, the jury might come to a view that the complaint was not delayed and was made at the first reasonable opportunity.

Her Honour pointed out that MG was unavailable to give evidence, as she could not be located, and that therefore there was no confirmation of this conversation. Her Honour told the jury that if they were satisfied it was a complaint and was made at the first reasonable opportunity, that being two weeks after the event, then they should consider the following direction, which her Honour gave in these terms:

"Members of the jury, evidence of what is generally referred to as a recent complaint is an exception to the ordinary rules of evidence which exclude self-serving and hearsay evidence. The reason for the exception is that, in general, persons who are compelled to engage in sexual conduct complain about it, so the evidence is permitted to be given in order to test the consistency of the complainant's conduct. The absence of or delay in making a complaint may also be used to suggest inconsistency of conduct. Of course, these are commonsense propositions to which you should apply your own views of the evidence and of the witnesses. Delay in complaining does not necessarily indicate that the complainant's allegation is false."

After giving some further directions, her Honour told the jury that it was for them to say whether, in all the circumstances, the presence or absence of timely complaint "does constitute behaviour consistent or inconsistent with the happening of the offence." Her Honour said that the evidence "may or may not demonstrate consistency, but it is not to be regarded as evidence independent of the complainant giving additional support to the probability that the crime happened. Its only effect is upon the credibility of the complainant's story."

Where the Crown seeks to rely on evidence of recent complaint in a trial involving sexual offences, the trial judge must first determine whether the evidence of complaint may properly be admitted into evidence. The question for the judge is whether on the view of the facts as they have emerged before the judge the evidence is capable of constituting a complaint made at the first reasonable opportunity and of buttressing the complainant's credit by demonstrating consistency in her account: R. v. Freeman & others[2]. Put another way (as it was, in the same decision), the judge must decide "whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge"[3]. If the judge, in the exercise of his or her discretion, and after weighing all the evidence, has concluded that the evidence ought to be admitted then that decision will be overturned on appeal only if it is clear that the evidence could not, on any reasonable view, have had that effect, so that it can therefore be said that the judge's discretion has miscarried[4].

Under this ground, it was contended that the complainant's evidence of the conversation she had with MG, her school friend, was not capable of constituting a complaint about sexual misconduct by the applicant, and that the evidence ought not to have been admitted in the trial. Although the complaint evidence could relate only to the events alleged in count 3 Mr Morrissey submitted that the evidence, and the directions concerning it, tainted all of the convictions. Mr Morrissey said that his challenge to the ruling was not based on the fact that MG was not called as a witness. He conceded that evidence of recent complaint could be led notwithstanding the fact that the person to whom the complaint was made was not himself or herself called as a witness[5]. He contended, however, that the absence of the witness to the complaint from the witness box did bear upon the weight which the complaint was capable of carrying, and I agree that that may be so, particularly if the jury concluded that there was no acceptable explanation for the absence of the witness[6]. The judge must have regard to all relevant circumstances in the case when ruling on the admission of the complaint evidence[7]. The weight of the evidence might, therefore, be one relevant factor to be taken into account by the judge in assessing whether the evidence was capable of constituting a recent complaint, but the focus of attention by the judge would be upon the capacity of the evidence to meet the description of admissible recent complaint evidence. Nonetheless, the question of the weight of the evidence would primarily be a matter for the jury, once the evidence was admitted by the judge as being capable of constituting a recent complaint[8].

Mr Morrissey identified what he said were a number of discrete defects in the complaint evidence, which ought to have led to its rejection by the judge.

First, he submitted that the words used were incapable of constituting a complaint of sexual misconduct, against anyone. He submitted that the terms of the complaint were uncertain and vague and, at best, reflected a conversation which did not constitute a statement of grievance or accusation, which was an essential feature of an admissible complaint.[9] The evidence constituted nothing more than a discussion, by way of general discourse, he submitted, and that, too, would not constitute a complaint.[10] On one version of the conversation, the words did not refer to sexual activity at all, counsel suggested.

Secondly, he submitted, even if the words constituted a complaint they did not constitute a recent complaint because they were not uttered at the first reasonable opportunity.

As to the issues raised under his first contention, Mr Morrissey submitted that the complainant accepted that her words did not, in terms, report that her father had sexually abused her. She agreed that her friend had not, apparently, understood otherwise. Although the complainant had on one version said that her words had been to the effect, "Has your father ever put his penis up you?" she had admitted that she would not have understood a word like "penis" at that time, Mr Morrissey submitted; hence these were not the words she would most likely have used. The alternative version, "Has your father ever tried anything on you?" did not carry a sexual connotation, he submitted.

In my opinion, however, her Honour was entitled to conclude that either version of the complainant's question to her friend was capable of conveying a complaint about sexual misbehaviour by her father. Although not expressed with such emphasis or precision, the words of a ten year old child, on either version, could be accepted by the jury as amounting to an expression of a "grievance or an accusation"[11]. Whether either, and which, version was uttered, and whether it did convey that meaning, were matters for the jury, once the judge held the words were capable of conveying that meaning.

In Freeman the Court identified two distinct questions which the trial judge had to answer before admitting evidence of recent complaint:

"If the circumstances in which the alleged complaint was made are such that the learned judge concludes that the complaint was not made at the first reasonable opportunity after the event, he will exclude it. If he concludes that it was made in circumstances which remove from it those characteristics which mark it as a complaint, he will exclude it."[12]

The second question in the above passage flows from the requirement, elsewhere expressed in Freeman (as discussed above), that the judge must make an assessment of whether the evidence is "capable" of constituting a complaint about sexual conduct with which the accused is charged[13]. Thus, it is implicit that a judge might find in favour of admission of the evidence, in that respect, although the judge accepted that whilst the evidence was capable of supporting a contrary finding, the jury might reasonably reject the contention that the evidence did, in fact, constitute such a complaint. By way of apparent contrast, the first question identified in Freeman was not expressed to be whether, in the view of the judge, the complaint was capable of being regarded as having been made at the first reasonable opportunity, but, rather, in terms that the judge had to find that the complaint was in fact made at the first reasonable opportunity. Thus, in Freeman it is said, variously, that the complaint "must have been made at the first reasonable opportunity"[14] if it was to be admissible, and that the inquiry on appeal was whether it was open to the

judge to have found "that the complaints were made at the first reasonable opportunity"[15].

In Suresh v. The Queen[16] Kirby, J. held that the question whether a complaint was made at the first reasonable opportunity was "an important consideration" in determining its admissibility. Historically, the admission of complaint evidence in a sexual offence case is exceptional at common law, and only occurred where the complaint was made "at the earliest reasonable opportunity"[17]. Thus, it would be consistent with that history that the judge had to be positively satisfied that the complaint was made at the first reasonable opportunity, not merely that it was capable of being held to be so by the jury. Once the evidence of complaint was admitted, a jury might make use of it in deciding whether to accept the complainant's evidence. Although it is led in order to buttress the complainant's credibility, the jury might well conclude that it does not.

In deciding whether the evidence does or does not bolster the credibility of the complainant the jury, arguably, is not bound to first determine whether it is a complaint made at the first reasonable opportunity[18]

. That is the relevant question for its admissibility, but, in my tentative opinion, not for the use of the evidence by the jury. On the other hand, if the jury were to decide that the evidence did not constitute a complaint of sexual conduct with which the charge is concerned then they would put it to one side, as it had no other relevance.

It is not necessary to decide, in this case, whether the trial judge might admit evidence of complaint where it was merely capable of being found by the jury to have been made at the first reasonable opportunity. That is so, because in this case her Honour made it clear in her ruling that she considered herself obliged to make a positive finding, and did so. She concluded: "Accordingly, I am satisfied from the circumstances of the alleged offence and the nature of this complainant that the subject complaint was made at the first reasonable opportunity"[19].

In this case Mr Morrissey contends, however, that despite the terms of that conclusion, her Honour, rather than considering whether the complaint was in fact made at the first reasonable opportunity, addressed a different question, namely, whether failure of this child, or any child in her situation, to complain at the first reasonable opportunity might be understandable, so that a complaint made at a later time might then be admitted as the first "reasonable" opportunity.

In upholding the conclusion of the majority in the Court of Criminal Appeal, Kirby, J. in Suresh v. The Queen considered the question, earlier raised by Gaudron, J.[20] whether different considerations applied in determining what was the first reasonable opportunity for complaint when the complainant was a young child. His Honour held:

"This is not a particularly suitable case in which to explore further the point made by Gaudron, J. in M. It is enough for me to say that I could not dissent from the view which Anderson, J. ultimately reached in the court below that "[o]n any view of the facts, there was ample `reasonable' opportunity for complaint to be made in this case shortly after each group of offences occurred." The fact that the omission to avail herself of such opportunities may have been understandable in the circumstances would not have removed the significant obstacle to the exceptional admission of the evidence of complaint, correctly expressed by the majority in the Court of Criminal Appeal. I will therefore proceed on the footing that the majority were correct in that regard. If an objection to the evidence of the complaints had been made, such evidence should have been rejected. But what follows from the failure of trial counsel to object?"[21]

In the present case trial counsel did object to reception of the complaint evidence, and the evidence disclosed that there had been opportunities for the complainant to have made earlier complaint. Her Honour acknowledged that the complainant had attended school for two weeks after the sexual assault by her father and that on the day of the attack her mother had been in close proximity. Furthermore, soon after the attack she was alone in the company of an aunt she liked. On none of those occasions did she make complaint to anyone. Whilst recognising that those opportunities for complaint had existed her Honour held that in determining whether the complaint was made at the first reasonable opportunity she had to take into account the very young age of the complainant at the time. She said it would be reasonable to suppose that had she experienced such an attack the child would be in state of confusion and distress. Additionally, the complainant said that she had feared her father, who had threatened her. A delay of two weeks was not unreasonable or undue, her Honour held.

Mr Morrissey submitted that, in the first place, her Honour had merely speculated as to explanations why the complainant might not have taken advantage of earlier opportunities which presented themselves for her to make complaint. He submitted that the Crown had to prove that the complaint was made at the first reasonable opportunity and, therefore, it had to lead some evidence in support of that contention. Her Honour failed to address the evidence and the absence of evidence relevant to that question, counsel submitted, and instead based her decision on general observations about the likely distress and confusion the complainant, as a child, would have suffered. As I earlier noted, counsel submitted that her Honour confused the question of there being possible explanations for delay, on the one hand, with the question whether earlier opportunities to make complaint had arisen and not been taken by the complainant (when the opportunities were ones of which she might reasonably have been expected to avail herself had she been the victim of the assault she claimed). It was only if the complaint was made at the first reasonable opportunity - as to which there had to be evidence, counsel submitted - that the complaint evidence became admissible. Her Honour did not consider whether those earlier opportunities had been reasonable ones for the complainant to have taken, but only whether there might have been (hypothetical) reasonable explanations for her delaying making complaint. Therein lay the error, counsel submitted.

The concepts of first reasonable opportunity to complain, on the one hand, and delay in making complaint, on the other, are in one sense distinct, but there is an interconnectedness which operates both when the judge is determining the admissibility of the evidence and when the judge frames the direction to be given to the jury. As Callaway, J.A. observed in R. v. Matthews[22], evidence that a complaint was made at the first reasonable opportunity and evidence that it was not are admitted for similar reasons. Where, in the latter case, there is evidence of delay in making complaint, the jury may regard that as casting doubt on the evidence of the complainant, but before so concluding they must be warned pursuant to s.61(1)(b) of the Crimes Act - and have regard to the warning - that there may be good reasons for such delay in making complaint. Where there is evidence of complaint at the first reasonable opportunity then, as Callaway, J.A. observed, the jury may take that into account in assessing the credibility of the account of the complainant.

In Freeman[23], which her Honour cited in her ruling as to admissibility of the complaint evidence, the Court held that the question of first reasonable opportunity had to be weighed against all the surrounding circumstances, bearing in mind the subjective situation of the complainant. The situation of a child victim of sexual assault might well be such as to cause delay in making complaint, where an adult would be less inhibited[24]. Care needs to be taken by the trial judge, however, when considering such factors. As Winneke, P. makes clear in R. v. Knigge[25], the fact that the making of complaint is delayed for good reason, in particular because of the age of the complainant, cannot be used to convert what is not a "recent" complaint into what is a "recent" complaint.

There is no set rule as to when delay is too long to enable a complaint to be deemed "recent". In some cases, such as was held to be so in Knigge, the time lapse between the date of the alleged offending and the date of complaint will be "far too long to fulfil the criteria of `recent' complaint"[26]. In R. v. Munday[27] Ormiston, J.A. spoke of a delay being "modest" where complaint was made "within weeks or months". In Graham v. The Queen[28] the High Court considered the admissibility of complaint evidence when the facts were said to be "fresh in the memory" of the witness, pursuant to s.66(2) of the Evidence Act 1995 (NSW). Gaudron, Gummow and Hayne J.J.A, held that "fresh" meant "recent" or "immediate". Their Honours held that: "Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, and not, as was the case here, in years". In Suresh v. The Queen[29], delay of about seven months in complaint being made by a nine year old girl was described by Kirby, J as being a relatively short interval when compared with some of the cases that had come before the courts (although his Honour did not disagree with the conclusion reached by the majority in the Court of Criminal Appeal that on the facts in that case there had been reasonable opportunity to have made earlier complaint). On the other hand, in R. v. Corkin[30], King, C.J., with whom Millhouse, J. and O'Loughlin, J. agreed, held that a complaint made by a child three months after the conclusion of conduct which had taken place over years could not possibly constitute a complaint made at first reasonable opportunity.

In my view, it was open to her Honour to conclude that a delay of two weeks did not prevent the complaint having been made at the first reasonable opportunity, that is, to constitute a recent complaint. In deciding that the complaint was made at the first reasonable opportunity her Honour based her decision on the evidence of the complainant in the depositions. In so doing she was not speculating as to the circumstances which surrounded the delay of two weeks in the complainant's making her statement, but was basing her conclusion on the statements of the complainant and on inferences which could be drawn from those statements. No complaint was made about her Honour using the depositions for her ruling.

In her statement the complainant had offered explanations for not telling her aunt and for not speaking out earlier. As her Honour said in her reasons, the fact that an earlier opportunity might have arisen was not conclusive of the question whether the timing of this complaint, when made, was the first reasonable opportunity. It is true, as counsel observed, that her Honour often expressed her analysis in general and hypothetical terms, saying for example, that "It is not unreasonable to assume that a child who alleges that she has been seriously sexually assaulted by her father [would] be in a state of significant distress." However she related the general to the particular. Thus, her Honour followed that sentence in her reasons with this: "In her statement she said to the effect that whilst she attempted to communicate with her aunt, she feared her father and the consequences to her of telling anyone". Her Honour, however, then invited renewed doubt about her approach, by returning to the general and the possibly hypothetical, by stating that failure to speak to her aunt "is not of itself conclusive that this was the first reasonable opportunity of which she could avail herself to make a complaint. Indeed, such a proposition in the context of a likely traumatised child and complex family dynamics, in my view, is quite unreasonable."

Although there are passages in the reasons which provide support for the contention that her Honour was at times blurring the question of what is reasonable with what is recent, I am satisfied that her overall approach was not flawed. As I have said, these issues are interconnected. As is made clear in Freeman, the judge must have regard to all of the circumstances in the case, and what is "reasonable" must "take into account the subjective situation in which the prosecutrix was placed, and have regard to such factors as were operating on her at the material time after the events". That, in my view, is what the judge was doing in this case, and in my opinion it was open to the judge to conclude that the complaint was made at the first reasonable opportunity.

Ground 1 (b): The directions concerning the complaint.

Mr Morrissey submitted that her Honour was bound to have directed the jury as to the matters to which they should have regard in deciding whether the words of the complainant in fact constituted a complaint, and one made at the first reasonable opportunity. The directions given as to those questions[31], he submitted, did not tell the jury what criteria they ought use to determine the question.

The obligation imposed on a trial judge is to give such directions as are necessary and practical in the circumstances of the case to avoid a perceptible risk of miscarriage of justice[32]. In Freeman[33] the Court held that the jury had to be directed that the evidence of complaint did not constitute evidence of the facts stated in the complaint and that the jury had to determine, first, whether the complaint was made, and if so, in what circumstances and then, if made, whether the complaint points to the consistency of the evidence of the complainant. The jury would have to consider whether the complaint evidence goes to show that the complainant had reacted in a manner that might be expected of her if she had been subjected to the sexual acts she described. As I shall later discuss, the jury had to also be warned as to the limited scope of the evidence and as to the use they could not make of it.

In the passages of the charge which counsel claimed to be deficient, the learned judge clearly told the jury not only that they had to be satisfied that what had been allegedly said amounted to a complaint[34], but also that they had to be satisfied that if so it was made at the first reasonable opportunity. Her Honour then fleshed out each of those issues with a discussion of the evidence which bore upon those questions.

It was submitted that her Honour's discussion only highlighted reasons why delay in complaint might reasonably have been expected, rather than highlighting the fact that there were, in fact, earlier opportunities which had been allowed to pass. As I earlier said[35]

, I am not persuaded that the jury was under any obligation to determine that the complaint was made at the first reasonable opportunity before they could use it for the purpose of testing the credibility of the evidence of the complainant. That was a test for admissibility, which the judge had to determine[36]. Whether or not they were directed that it was a pre-requisite for them to find that complaint had been made at the first reasonable opportunity the jury would, no doubt, when evaluating the evidence, consider whether opportunities for earlier complaint had been allowed to pass. They might well regard the evidence as being relevant to bolstering the complainant's credibility even if they found that to be so, and I do not see why they could be denied the right to use the evidence in that way, once it had been admitted. In any event, they were directed that they "must be satisfied that the complaint was made by [the complainant] at the first reasonable opportunity after the alleged offence". The applicant, arguably at least, was receiving a more beneficial direction than he was entitled to receive.

The content of a direction concerning recent complaint, in particular whether the jury must be told they had to be satisfied that the complaint was made at the first reasonable opportunity is not settled, and as I have said, need not be resolved in this case. There is some guidance, however, from R. v. Stoupas[37]. In that case two complaints were made within an hour of the assault, and defence counsel conceded the jury could be told they could treat them as evidence of recent complaints. The judge directed the jury that, "If you are satisfied that a complaint was made to each of these witnesses and a matter I might say, which is not in dispute, and it was made at the first reasonable opportunity after the alleged rape, then you could use it as evidence which demonstrates consistency on the part of the complainant". The words I have highlighted in that passage were much the same as those used by the judge in this case (see the preceding paragraph) but with less emphasis than the words "you must be satisfied". The judge in Stoupas invited the jury to consider what would have been the situation had the complaint been delayed for two weeks, and suggested that it might cast doubt on her credibility as a witness, whereas if they accepted that it was made at the first reasonable opportunity it might be regarded as evidence of consistency "which supports her credibility as a witness". Given that first reasonable opportunity was conceded in that case too much cannot be drawn from the fact that the Court did not criticise the direction for its requirement that the jury be satisfied that it was first reasonable opportunity before they could use the evidence as relevant to the credit of the complainant. Winneke, P. did, however, suggest what might have been the appropriate terms of a direction in that case[38]:

"Mr Richter submitted that such a direction was both a misstatement of the law and an overstatement of the evidential status of a delay in complaint. That submission is correct because it is not the law that a failure to complain by a sexual assault victim for two weeks, or longer, amounts to evidence which casts doubt on the victim's credibility. Indeed, on the assumption that such a delayed complaint is admitted into evidence (and, not infrequently, the first complaint is one made to the police), the jury should, in appropriate cases, be told that such failure or delay may, but does not necessarily, cast doubt on the complainant's credibility (my emphasis): see Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427. Indeed, in cases where it is suggested that there has been such a delay, s.61(1)(b) Crimes Act now imposes an obligation on the trial judge to warn the jury that such a delay does not necessarily indicate that the allegation is a false one and to inform the jury that there may be good reasons why the victim of a sexual assault may hesitate in making complaint. The learned trial judge thus accorded an inappropriate evidential status to a `delayed complaint' in the `illustration' which he gave to the jury. Mr Richter submitted that, because the learned judge had given the direction as a `converse illustration' of the use to which they could put a proximate complaint, it became a significant misdirection because it conveyed, by implication at least, a message to the jury that a proximate complaint is evidence which they must use to enhance the reliability of the complainant as a witness. Standing by itself, I doubt whether the misdirection on this aspect would have been of much prejudice to the applicant. Its vice lies in the fact that it added to the confusion potentially created in the minds of the jury by the whole direction in respect of recent complaints. For my own part I cannot see how the use to which a jury might put a delay in complaint is or can be illustrative of the manner in which they may use evidence of a proximate complaint. It is true that trial judges will commonly tell juries that presence or absence of complaint is something which they may use to assess consistency or inconsistency of conduct on the part of the complainant, but if they do so, it is in the context of instructing the jury that the evidence can go no further than that, and cannot go to establishing or disproving facts of which the complainant gives evidence: cf. Crofts at 434 per Dawson J."

The Court did not otherwise comment on the appropriateness of the direction that the jury had to satisfy itself that the complaint was made at first reasonable opportunity. It could of course, be said that given its historical roots the exceptional evidential use of complaint evidence was predicated upon the complaint being a proximate one, that is, one made at the first reasonable opportunity[39], so that it had no value, at all, unless that was the case. If that is so then it might be thought that the jury ought be directed, as they were in this case, that they could not use it unless they first concluded that it had been a complaint made at first reasonable opportunity.

As I have said, it is not necessary to resolve this question, which was not the subject of detailed debate before us, in any event. Assuming, as the judge did, that such a direction was appropriate in the circumstances of this case, the question then is whether the jury required further direction as to what constituted a complaint and one made at the first reasonable opportunity.

Mr Morrissey submitted that the jury were not told what constituted a complaint, as opposed to a mere discussion. They were not told that it had to be an expression of grievance or accusation. They were not directed to the evidence that went either way as to that. In his outline of argument, Mr Morrissey complained that the judge failed to tell the jury what criteria to apply in deciding whether complaint was made at the first reasonable opportunity and instead "merely provided arguments as to why the jury should find it was so".

With respect to that last argument, and insofar as the complaint now being made is that the charge was unbalanced, it must first be noted that no exception was taken to the charge by counsel as to lack of balance. That omission would not prevent the court finding that there had been a miscarriage of justice but it is a strong indicator that in the atmosphere of the trial counsel did not perceive any injustice or deficiency in the charge[40]. In my opinion, subject to a matter I later address[41]

, the charge was adequate to the task of placing the issues before the jury on the question of complaint, and has not been shown to have been unfair. It seems to me to have been a matter which the jury would have been perfectly capable of determining without further direction or elaboration by the judge. They had a clear exposition of the evidence and the competing arguments and knew what the evidence was on these questions.

Although it was a case with long delay before the applicant was first informed of the allegations against him, no complaint was made about her Honour's directions in that regard.

I turn then to one further complaint about the directions.

Subsequent to this trial, the decision of the case of R. v. Knigge was delivered by the Court of Appeal. The charge in that case, as was so in this case, used what were then the terms of a complaint direction set out in the County Court charge book. The language of the direction on complaint in the Knigge charge was almost identical to that given in the present case. Mr Morrissey referred to a passage in the judgment of Winneke, P. in Knigge in which he held that the direction was wrong in law, because the judge in that case said to the jury that the evidence of complaint was allowed as an exception to the rules against hearsay and self serving evidence and that "the reason for the exception is that in general persons who are compelled to sexual conduct complain about it". In this case, her Honour used much the same language. Mr Morrissey submitted, therefore, that what was a defect in the charge in Knigge was a defect in this charge also.

The statement in Knigge by the President, that the direction "was wrong in law"[42], was obiter. It was said to have been based on the opinion of Batt, J.A. in R. v. RHMcL[43]. The accuracy of the opinion that the direction was wrong in law was doubted by Ormiston, J.A. in R. v. Munday[44], and, as his Honour's analysis there demonstrates, the sourcing of the opinion to the judgment of Batt J.A. in RHMcL is erroneous (for the words there used were different and closer to those in R. v. Matthews[45]). Ormiston, J.A. held that the statement contained in the passage in the charge in Knigge does, in fact, represent the law, although his Honour suggested that it may be preferable that juries not be directed about the reasons behind the principle of law[46].

A more general complaint was that the direction failed to warn the jury that the evidence could only be used for the limited purpose, if they chose to so use it, of bolstering the credibility of the complainant on count 3 by demonstrating the consistency of her account of the alleged crime[47]. The jury may have understood, so it was submitted, that the complaint evidence was capable of constituting evidence of the happening of the events the subject of the charge. In my view, the charge was not deficient in this respect. A similar complaint was made about the charge in Munday, which again employed substantially the same language as was used in Knigge and in the present case. In holding that the direction was not relevantly defective, Ormiston, J.A. noted[48] that the judge had told the jury that the evidence "was not to be regarded as giving additional support to the probability" that the offences took place, and also directed that it was "not evidence of the truth of its contents". In the present case the judge did not use the second of those phrases but she directed the jury that:

"In considering the evidence of complaint, you should bear in mind that, of course, its springs from the same source as the evidence of the crime. It may or may not demonstrate consistency, but it is not to be regarded as evidence independent of the complainant, giving additional support to the probability that the crime happened. Its only effect is upon the credibility of the complainant's story".[49]

In my opinion, although the second of the phrases referred to by Ormiston, J.A. was not used by this judge, the directions given were adequate to ensure that the jury did not misuse the evidence of complaint.

The complaints made under ground 1(b) also fail, in my opinion.

Ground 3(a): Evidence of assault on applicant's wife

As to this ground, Mr Morrissey submitted that although it was evidence led from a witness who was giving evidence with respect to count 4 - a count on which it is conceded there is no basis for overturning the decision - the evidence had the effect of undermining the credibility of the wife of the applicant, who gave evidence supportive of his defence.

The applicant's daughter, E, who was the victim relevant to the assault count 4, when being led in chief about the assault on her, described her father breaking a branch from a tree, stripping it and then whipping her with it across her back and legs. She was then asked and answered questions as follows:

"What stopped it? - Mum came to stop it all from happening. How did she do that? - She just got in between us so I could run. Did that stop the attack? - Yes. What is the next thing that happened in relation to that incident? - Well, dad hit Mum and I went straight - I don't know, I just took off. Where did your dad go? - After all that, dad just jumped in his car and took off."[50]

The prosecutor had opened that evidence in his opening address. Counsel for the applicant thereupon submitted that the evidence ought not be led as it was irrelevant and prejudicial. The judge ruled that it formed part of the res gestae.

Mr Morrissey submitted to us that that evidence should not have been admitted. Its admission was damaging, he said, and undermined the defence, because the wife's later evidence that she had never seen any improper conduct between her husband and her daughters, in particular had not witnessed the incident claimed to have happened in the kitchen with M, would have been treated by the jury as that given by a "battered wife", one who was so dominated by her husband as likely to give false evidence on his behalf. That submission seems to me to greatly overstate the significance of the evidence of E and, for that matter, that of the applicant's former wife.

The former wife of the applicant was called by the Crown to prove the birth dates of the complainants. Apart from giving that evidence and also saying she was now divorced, she gave no other evidence in chief. Under cross-examination she agreed that there was no indication during the marriage of any impropriety between the applicant and his daughters. She was asked whether there was any occasion when she had seen her husband pulling up the zip of his trousers, or pulling up his daughter's trousers in the kitchen, and she said that she had seen him pull up the zip of his trousers. She then gave what the transcript suggests was a non-responsive answer, but may not have been, having regard to the fact that her evidence was given through an interpreter. She said "Yes, he told me `Go inside and get (indistinct) otherwise I going to hit you' ".[51]

In the absence of the jury, counsel said she was taken by surprise at the answer because at the committal the witness had said that she did not actually see the incident when the applicant had pulled up his zip, but had been told of it by her daughter E. Further, she had agreed she was not told that at that time, but more recently. Counsel said that the witness's evidence about the applicant threatening to hit the witness was also new. The prosecutor responded that if there was a problem it lay with counsel's forensic approach in questioning the witness, both at the committal and at trial.

The witness was recalled and then had a question and answer from the committal put to her and she agreed she had said that she did not see an incident in the kitchen when her husband pulled up the zip of his trousers[52], and said that her answer at the committal was true.

The complaint made by Mr Morrissey was that the evidence which E gave about the applicant hitting his wife was irrelevant and should not have been led; it could have been omitted without causing any problems. It was said to be prejudicial because it suggested a propensity to violence which was of itself damaging, given the charges he faced, but also undermined the evidence of his ex-wife.

I take the latter point first. In my view, given the way the former wife's evidence emerged, there was no reasonable prospect that insofar as it could be described as helpful to the defence it could have been seriously damaged, if at all, by the specific evidence given by E about the applicant hitting his then wife. The ex-wife's evidence may well have been damaging, in itself, but that was due to the manner in which she was questioned, not to anything said by E.

As to the admissibility of E's evidence, in my view it was part of the narrative, of the res gestae. The fact that at the time of the events with which a count is concerned other criminal conduct took place, such other acts being prejudicial to the accused, does not make the evidence necessarily inadmissible[53]. The learned judge ruled after the prosecutor's opening address that the evidence was admissible as part of the res gestae, and in my view she was right. However, whether or not the evidence was admissible as part of the res gestae, I am not persuaded that it was not relevant to count 4, in any event, as tending to support the account of E as to what happened to her.

In any event, I am not persuaded that the admission of this evidence from the complainant constituted a miscarriage of justice under the second limb of s.568(1) of the Crimes Act or constituted a substantial miscarriage of justice under the proviso, if the third limb[54]. In this regard, I note that the applicant's wife later gave evidence that the applicant had threatened her in the kitchen on what the jury might have thought to be the occasion of the events of count 3.

Ground 3(b): Directions concerning evidence of E.

As to ground 3(b), Mr Morrissey submitted that the jury should have been directed as to what use the evidence could and could not be put. He did not suggest what direction was required, nor did he elaborate on the complaint. It is for the applicant to demonstrate error in or inappropriate omission from the directions, and in the absence of argument on his behalf none is demonstrated.

I note that there was no exception taken by counsel to the charge in this respect.

The grounds of appeal not having been made out, I would dismiss the application for leave to appeal against conviction.

[3] Freeman, at 5. It was not contended before us, or at trial, that the question of "spontaneity" is to be distinguished from complaint at first reasonable opportunity, or was required to be established in this case as a discrete feature of a recent complaint.

[5] See R. v. J (No.2) [1998] 3 V.R. 602, at 619-620.

[6] R. v. J (No.2) at 620, per Winneke, P. and Charles, J.A.

[10] See R. v. Knigge [2003] VSCA 94; (2003) 6 V.R. 181, at 190 [15]

[11] See: R. v. Saragozza [1984] VicRp 15; [1984] V.R. 187, at 198-199.

[13] See R. v. Freeman , at 5; R. v. Saragozza, at 199.

[15] Freeman, at 8. In R v Corkin, (1989) 50 SASR 580, at 581-2, King, C.J. held that it was a requirement for admissibility that the complaint was made at the first reasonable opportunity.

[17] Kilby v. The Queen [1973] HCA 30; (1973) 129 C.L.R. 460, at 466, per Barwick, C.J.

[18] See the later discussion at par [[].

19] Ruling 13 August 2002, Reasons delivered 14 August 2002, at p.6.

[20] M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 515.

[24] See M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 514-515, per Gaudron, J.

[25] [2003] VSCA 94; (2003) 6 V.R. 181, at 192-3 [19]-[20].

[31] Counsel referred to passages in the charge at T701-702.

[32] R. v. Miletic [1997] 1 V.R. 593, at 605-606; R. v. GTN [2003] VSCA 38, at [56], [61]ff.

[34] At one point in her charge (T702), her Honour said the question was whether the evidence was "capable of constituting" a complaint. That was an error, but one not repeated elsewhere, and, in the circumstances, was not a material misdirection.

[35] See pars [[]-][[]].

[36] In R. v. Zorad [1979] 2 N.S.W.L.R. 764, at 772, the Court of Criminal Appeal approved a direction wherein the jury were told that it was an essential requirement in the law that a complaint be made at the first reasonable opportunity, otherwise it "would not be admissible in court". It is difficult to see why the jury should be given that information. In Kilby v. The Queen, at 465, the appropriate direction was said to be that the jury could have regard to the failure to complain at the first reasonable opportunity as a matter relevant to the credit of the complainant.

[39] See the discussion by Barwick, C.J. in Kilby v. The Queen [1973] HCA 30; (1973) 129 C.L.R. 460, at 466-473.

[40] R. v. Clarke & Johnston [1986] VicRp 64; [1986] V.R. 643, at 661-2; R. v. Osland [1998] 2 V.R. 636, at 651-2; R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355, at 360-1 [16]-[21].

[44] [2003] VSCA 189; (2003) 7 V.R. 423, at 430-433 [22]-[24]. See, too, Callaway, J.A. at 439-440 [43]-[45]

[47] The use that may be made of such evidence is not always expressed the same way. In R. v. Stoupas, for example, Winneke, P., supra, at 651, said the most that complaint evidence could do is to support the credit of the complainant by "showing a consistency between the manner in which she reacted at the time and her evidence in court", whereas Hayne, J.A., at 656 described it "as being evidence consistent with the truth of the evidence which he or she gives".

[53] Harriman v The Queen [1989] HCA 50; (1989) 167 C.L.R. 590, at 594, 628.

[54] See R. v. Weiss [2004] VSCA 73, at [61]-[70]

At a glance

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Judgment (134 paragraphs)

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Cases Cited (2)