R v King [1995] QCA 48

Court of Appeal (Qld)|1995-03-03|Before: Before Fitzgerald P, Pincus J, Thomas J, Mason JJ, Menzies J, Gaudron J, Fitzgerald P

Joint reasons for judgment by Pincus JA and Thomas J;

Separate concurring reasons for judgment by the President

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

The circumstances giving rise to this appeal are set out in the reasons for judgment of the other members of the Court. I propose to deal only with the admissibility of the complainant's statements to friends and the mother of a friend that she had been raped.

Unsatisfactory though its historical rationale may be, it is an entrenched principle that evidence of early complaint is admissible in rape cases, but "only as evidence of consistency in the account given by the woman claiming to have been raped; that is to say, ... as matter going to her credit": Kilby v. R. [1973] HCA 30; (1973) 129 C.L.R. 460, 466, per Barwick C.J., with whom McTiernan, Stephen and Mason JJ. agreed; see also per Menzies J., with whom Mason J. also agreed, at pp. 473-474. As was pointed out by Gaudron J. in M. v. R. [1994] HCA 63; (1994) 126 A.L.R. 325, 344, in prosecutions for sexual offences evidence of early complaint is "admissible whether the victim is male or female, but, more often than not, the principle has been stated with respect to women and girls, as has its rationale". The principle is based on male assumptions, in earlier times, concerning the behaviour to be expected of a female who is raped, although human behaviour following such a traumatic experience seems likely to be influenced by a variety of factors, and vary accordingly. Presumably for that reason, the law in some places has been altered by statute; e.g. New South Wales, where s. 405B was inserted into the Crimes Act 1900 by the Crimes (Sexual Assault) Amendment Act 1981. See, further, M. v. R. at pp. 344-345.

However, in Queensland it remains necessary to apply the common law principle. There is little to be gained by resort to older judicial formulations and explanations to ascertain the ambit of that principle. It is necessary to give it a modern operation which is just.

In Kilby, although Barwick C.J. also referred to "recent complaint", he at least twice (pp. 466 and 469) described the evidence of prior statements which is admissible in relation to sexual offences as evidence of "proximate complaint". As his Honour emphasised, such evidence is not evidence that the complainant did not consent to intercourse or otherwise corroborative of the evidence of the complainant (p. 466), and a failure to make such complaint is not evidence of consent (p. 469). Evidence of the making of the complaint is not "evidence of any fact other than the fact of the making of the complaint itself and of the terms in which it is claimed to have been made". The basis of its admissibility in relation to criminal proceedings for sexual offences is "... its tendency to show consistency in the conduct of the prosecution" (p. 469). Later on the same page the Chief Justice said:

"... just as the fact of a proximate complaint tends to support credibility of the complainant so its absence may be a considerable factor where a tribunal of fact is deciding as to the credibility of the complainant."

The final passage from the Chief Justice's judgment which it is necessary to set out is taken from p. 472, and is as follows:

"The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence."

In determining the range of the evidence which is admissible as evidence of proximate complaint, it is instructive to consider the other exception to the general principle that evidence of prior consistent statements out of court is not admissible. That other exception has developed in relation to evidence to counter a contention that evidence has been belatedly concocted. The development has occurred by different, and sounder, reasoning but by reference to the same broad purpose; namely, supporting, in specified appropriate circumstances, the credibility of a witness whose credit has been attacked by a contention of fabrication.

In The Nominal Defendant v. Clements [1960] HCA 39; (1960) 104 C.L.R. 476, Dixon C.J., with whom Kitto J. agreed, said at p. 479-480:

"The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it.

... the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack."

That passage was quoted with approval by McTiernan, Taylor and Menzies JJ. in Transport & General Insurance Company Limited v. Edmondson [1961] HCA 86; (1961) 106 C.L.R. 23, at p. 28.

In The Nominal Defendant v. Clements, Menzies J. and Windeyer J. each examined the authorities on the rule which the Chief Justice had expressed in the passage above quoted, both noting (Menzies J. at p. 484, Windeyer J. at p. 491) that, initially, evidence could always be given of earlier statements by a witness which were consistent with his evidence, but that had ceased to be the law by R. v. Parker (1783) 3 Dougl. 242 [99 E.R. 634], although earlier consistent statements continue to be admissible sometimes: "... it is the particular circumstances of the case that determine whether or not an earlier statement consonant with the evidence given by a witness is itself admissible": per Menzies J. at pp. 484-485.

After an extensive discussion of the relevant case law, his Honour concluded that cross-examination of a witness on the basis that he had made prior inconsistent statements did not, without more, make evidence of prior statements which were consistent with his testimony admissible; evidence of prior consistent statements was admissible only to rebut a contention of recent fabrication, deliberate or inadvertent, and then not to prove the truth of the matters given in testimony but only to show the consistency of the witness's assertions: in other words, to rebut a matter relied on as damaging the witness's credit, that he had belatedly fabricated his account of events, and thus, in that sense, to bolster his credibility.

After referring to R. v. Parker, Windeyer J. continued at p. 491:

"... soon thereafter a more strict analysis of probative values showed that, although inconsistent utterances may undermine credibility, mere repetition of a statement does not tend to show it to be true. Thus the rule that prior consistent statements are inadmissible became settled. Here we are concerned with an exception to this rule. It is a recognized exception. But, as Collins J. observed in his judgment in this matter, 'there is a danger that the salutary rule that a witness cannot corroborate his own evidence by previous self-serving statements be departed from unless the true meaning of the phrase "recent invention" is clearly recognized and the exception kept strictly within its own limits'. I go therefore to see what limits have been set to the doctrine relied upon here to make the plaintiff's statement ... admissible."

"The kind of imputations and allegations that - if sufficiently clearly made - will let in prior consistent statements are: First, that the witness's testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated."

Then, at p. 495, he stated his opinion in the following terms:

"Simply because a witness is shown to have made a statement inconsistent with his testimony, evidence that he also made consistent statements does not become admissible. And it does not become any more admissible if the inconsistent statement is not an actual utterance or writing, but is the eloquence of silence or of conduct. If, however, a witness's silence or omission to mention some circumstance, on an occasion when he might have done so, is made the basis for a suggestion - as it often may be - that he has invented it since that occasion, then evidence is admissible that on a still earlier occasion he did speak of it.

... the evidence is only to be let in when the grounds for doing so clearly exist. It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken (Britton v. Commissioner for Road Transport [1947] NSWStRp 5; (1947) 47 S.R.(N.S.W.) 249; 64 W.N. 16; Smith v. Commonwealth Life Assurance Society Ltd. (1935) 35 S.R.(N.S.W.), at p. 556). There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify. And, finally, if evidence of an earlier statement be received, the grounds for doing so should be made clear to the jury lest they should regard it as evidence of the facts stated."

The admissibility of evidence of recent complaint in the case of sexual offences was recognised but not discussed by Menzies J. However, at p. 486, his Honour quoted with approval a statement in the judgment of Swinfen Eady L.J. in Jones v. South-Eastern & Chatham Railway Co's Managing Committee (1918) 87 L.J.K.B. 775, at p. 777; (1918) 118 L.T. 802, at pp. 804-805, describing such offences as "a special class of case". And, at p. 489, he quoted a passage from a judgment of the Full Court of New South Wales in Britton v. Commissioner for Road Transport [1947] NSWStRp 5; (1947) 47 S.R.(N.S.W.) 249, at p. 251; 64 W.N. 16, at p. 17, in which Jordan C.J., speaking for himself and the other members of the Court, in effect explained the admissibility of evidence of recent complaint on the footing that it negatived, in advance, the possibility that the charge was a belated fabrication.

Windeyer J. also referred to the admissibility of evidence of recent complaint, but said that the two exceptions to the general principle that evidence of prior consistent statements are not otherwise related. The relevant passage at pp. 492-493 is in the following terms:

"In cases of rape and sexual assaults, evidence is admitted of complaints made shortly after the occurrence. Such evidence and that of the kind here in question are often referred to together, because each provides an exception to the rule that earlier statements by a witness consistent with his testimony in the box are inadmissible. But, otherwise than as exceptions to the same rule, the two classes of evidence are not related. The historical origin of the rule about complaints, and the grounds on which it is commonly justified, are peculiar to it; and it operates to make evidence of the complaint admissible in chief to support the credibility of the testimony of the complainant. The doctrine here in question is, on the other hand, concerned with evidence admissible to restore the credit of a witness, after it has been impugned in a particular fashion, by letting in evidence that ordinarily would be excluded."

However, as appears above, his Honour had cited with approval Britton v. Commissioner for Road Transport at p. 495, as had Menzies J. at p. 489. In that case, Jordan C.J. said at p. 251 (47 S.R.(N.S.W.)):

"It is well established that if a witness, whether he be a party or not, gives evidence, it is not permissible to support his evidence by proving that on some previous occasion he made a statement to the same effect: Gillie v. Posho Ltd. [1939] 2 All E.R. 196, at pp. 200-1. To this rule there are two equally well-established exceptions. First, in the case of sexual offences, evidence of timely complaints is admissible, not as evidence of the commission of the offence, but to rebut consent and negative the possibility that the charge is an after-thought, a possibility which exists in a special degree in this class of case; and second, in any case, civil or criminal, in which it is sought to suggest that the evidence which the witness is giving is an after-thought, concocted by him after the event, evidence that he made a similar statement shortly after the event in question is admissible, not as evidence of the event, but to rebut the suggestion that his evidence is a belated concoction."

Both exceptions to the general inadmissibility of prior consistent statements have as their purpose support for the credibility of a witness whose evidence is otherwise vulnerable to attack as belated fabrication, i.e., concoction after a material time. Ordinarily, the attack on the credibility of the witness must have been made before evidence of prior consistent statements is admissible. Proceedings for sexual offences are a special case, which, however questionable the historical rationale, can be justified provided that the principle is applied with proper care. There are a number of factors in favour of admissibility: the material time in such offences is usually, perhaps always, the same, namely, the time at which the sexual activity occurs; a contention of fabrication is common, if not routine, in the defence of sexual offences; often it is word against word, the original rationale for the warning to juries of the danger of convicting on uncorroborated evidence, which disadvantages the complainant and advantages the accused in such a contest of credibility (cf. Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79, 85-86, 93, 105-106); and the absence of evidence of proximate complaint in a proceeding for a sexual offence, mere silence, can give rise to a suspicion of belated fabrication: M. v. R. at p. 344.

Once the exceptions to the general principle that evidence of prior consistent statements is inadmissible are recognised as having the same purpose, there is no reason for distinguishing between them in relation to the evidence which is admissible, and no justification for doing so.

Neither principle nor common sense requires that the admissibility of evidence of proximate complaint is to be determined by rigid adherence to the literal meaning of a formula; e.g., that the complaint must have been made at the "first reasonable opportunity", however useful such a formula might sometimes be: cf. R. v. Sailor [1993] QCA 23; (1994) 2 Qd.R. 342. The test is, rather, one of substance, and can be expressed in terms which substantially take advantage of what Dixon C.J. said in The Nominal Defendant v. Clements at pp. 479-480.

The evidence of proximate complaint which is admissible in proceedings for a sexual offence is evidence of "... a statement to the same effect as the account he [or she] gave as a witness ..." which "rationally tends" to support the credibility of the witness "having regard to the time and circumstances in which the statement was made". As is pointed out in Sailor, the material circumstances include circumstances personal to the complainant. Provided that the evidence of proximate complaint is capable of meeting the test for admissibility, the trial judge has a discretion to admit it (Evidence Act 1977, s. 130) and, if it is admitted, it is for the jury to decide what, if any, effect it has on the credibility of the complainant's testimony.

On the basis of that test, the evidence in the present matter was clearly admissible.

On the other issues, I agree with the reasons of the other members of the Court.

I also agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

JOINT REASONS FOR JUDGMENT - PINCUS JA AND THOMAS J

The appellant was convicted of rape and two indecent assaults, one of them with a circumstance of aggravation. They relate to acts committed upon the complainant at his home after taking her to a hotel for dinner.

Since one of the main grounds argued concerns the admission of "fresh complaints", details of these will be included in the summary of evidence now given.

The complainant who was 34 accepted the appellant's invitation to have dinner with him on a Saturday evening. Up to that stage he was known to her as a customer of the shop in which she worked. By arrangement she met him at his house and they walked to the Grandview Hotel which was five minutes away. They had drinks and dinner and returned to the house. They then smoked some marijuana. She then felt quite sick and experienced both diarrhoea and vomiting. She told him she was going to leave, but he produced a knife at her throat. He blindfolded and gagged her before indecently assaulting and raping her.

After these acts she escaped by jumping over a verandah and drove to Cleveland. She stopped outside the police station (at 1.10 a.m.) but decided not to go in because of her consumption of alcohol and marijuana. She drove home where she told Peter Smith (who was her business partner and flatmate) that she had been raped. She had a bath and went to bed. The following morning at about 8.00 a.m. she went to the home of her friend Diann Banks and told Miss Banks and her mother that the man she had been out with had pulled a knife on her and raped her and that she had jumped out of the window to get away. Miss Banks confirmed the making of that complaint. Mrs Banks senior was suffering from pneumonia at the time of trial and was not called.

It was submitted that the learned trial Judge erred in failing to exclude the statements to Smith and Miss Banks from the evidence.

Application was made to the learned trial Judge to exclude these statements. This was based upon the submission that neither of them was made "at the earliest reasonable opportunity". On appeal it was also submitted that his Honour ought to have excluded such statements in the exercise of his discretion, but there are difficulties in the path of such a submission in the absence of any request at the time to exclude the evidence on that basis.

If invited to do so, there were grounds upon which the learned trial Judge could, but not necessarily must, have exercised a discretion to exclude the first of her complaints, i.e. the one made to her flatmate Smith. One point that was said to have justified the exercise of the discretion to exclude was that the complainant had previously said to police, and at committal, that she had not complained to him. Another was the circumstance that Smith, the person to whom she claimed to have complained, was not called to give evidence.

The purpose of admitting evidence of recent complaint is to enable the jury to consider the consistency and credibility of the complainant. It has been described as a potential "buttress to the credit of the woman who has given evidence of having been subject to the sexual offence". (Kilby v The Queen [1973] HCA 30; (1973) 129 C.L.R. 460, 472). Once admissible, such evidence can be given by the complainant herself and by any other person who can prove the complaint. The main forensic advantage from the Crown's point of view might be thought to lie in the ability to call other witnesses who fortify her credit in this respect.

The admissibility of recent complaint evidence is sometimes inseparable from its converse, namely the absence of a recent complaint. This may be a positive factor to be taken into account in favour of the defence (Kilby p.475). In the present case it would seem to have been likely, especially in view of her earlier disclaimer to the police in relation to Mr Smith, that absence of complaint to him would be raised at some stage by the defence. That would have made this alleged complaint admissible even if the Judge had initially excluded it. The fact that no request was made for discretionary exclusion meant that these matters were not canvassed with counsel, and it is not a point that can now effectively be dealt with by the Court of Appeal. All we can say is that it seems likely that her evidence on this point would have emerged at some stage in the trial in any event, and that no miscarriage of justice is perceivable in the circumstance that his Honour did not voluntarily rule out the evidence on some discretionary basis.

There remains however the question of admissibility. The submission that the first complaint (to Mr Smith) was not made at the first reasonable opportunity was not persisted with upon appeal. However that objection was maintained with respect to the second complaint (to Miss Banks).

The submission is that while the first complaint may be said to have been made at the first reasonable opportunity the second one made seven hours later cannot. It was not submitted that a second complaint could never qualify as being admissible, and it was conceded that the authorities support, in appropriate circumstances, the receipt of several consecutive complaints to different persons (R. v. Wilbourne (1917) 12 Cr.App.R. 280; R. v. Freeman [1980] VicRp 1; [1980] V.R. 1, 8; R. v. Roissetter [1984] 1 Qd.R. 477). It was submitted however that the making of one complaint is a factor that renders it more difficult to regard a later one as satisfying the requirement that such a complaint be made "at the earliest reasonable opportunity".

The words just quoted express a test and are not to be construed like a statute. Indeed, it is impossible to reconcile the many decisions on this question with a literal application of the superlative "earliest". A detailed discussion of the authorities appears in a recent decision of this court (R. v. Warner CA 433/94 3.3.95) and it is unnecessary to restate the relevant principles. The test there suggested returns to the rationale for admitting such evidence.

"A more satisfactory formulation, in my view, would be whether, having regard to the circumstances surrounding the complaint, including the time which had elapsed since the alleged commission of the offence, the complaint is capable of supporting the credibility of the complainant as a witness."

Such evidence has the double function of negativing any effect that the alleged victim's silence might have on her credibility (M v. The Queen [1994] HCA 63; (1994) 126 A.L.R. 325, 345 per Gaudron J.) and of positively supporting her credit (Kilby 465, 472). Warner identifies relevant circumstances as including those peculiar to the complainant such as her age, any reason she may have had for not making the complaint sooner, and whether it was made spontaneously or only after direct enquiry or prompting or even threats or inducement.

We accept the test formulated in Warner above. In recognising this wider test of capability of supporting credit we are not intending to open the door to stale complaints. It will generally be necessary that the complaint be early or proximate to the event complained of. However, undue concentration upon the time factor may lead to too narrow and artificial a result. The word "fresh" may sometimes provide a helpful guide on what is merely one aspect of a wider test.

There is every reason to regard the disclosure made by the complainant to her friend Miss Banks as a spontaneous and natural sequence capable of being seen as conduct consistent with her story and therefore supportive of her credit. The period involved is not lengthy. Her actions following her escape were to drive home after rejecting the option of going to a police station, to go to bed, and fairly early in the morning to visit her friend who was expecting her at about that time. Upon seeing her and her mother the complainant made an immediate statement about the apparently distressing events of the night before.

In our view this evidence was fairly capable of supporting the complainant's credit and was correctly received as evidence of what is frequently referred to as "fresh complaint".

Over objection, the learned trial Judge permitted the prosecution to lead evidence of a statement made by the appellant to a police photographer (Guse) about two months after the relevant events. Guse gave evidence that he attended the appellant's residence to take photographs of the verandah. He asked the appellant whether "anything had changed since that night" and the appellant said that there were a few things on the verandah that were not there on the night. In particular the appellant indicated a square wooden frame saying that it was on the verandah but not in its present position. The appellant went on to say "it wasn't there because that's where she climbed over the verandah".

It was submitted that this evidence should have been excluded on the ground that it had no real probative value or alternatively that its probative value was so slight that it was far outweighed by possible prejudice to the appellant. In our view the main prejudice to the appellant was its probative value, and that of course is not a basis for exclusion (R v. Hasler ex parte Attorney-General [1987] 1 Qd.R. 239). Its relevance lies in its support of the complainant's story in a material particular, namely the fact that she left by climbing over the verandah, a fact denied by the appellant when he gave evidence. He admitted that a conversation had occurred between him and Guse on the occasion mentioned but said that he was indicating a place where she claimed to have gone over the edge of the verandah. There was therefore a conflict of evidence on the content of the statement, and that was a matter for the jury to resolve. However Mr Guse's version of the conversation was plainly admissible.

It was submitted in the alternative that upon the admission of the evidence the learned trial Judge should have warned the jury of the dangers of acting upon it given the circumstances that Guse was policeman and of the possibility of fabrication by him after the defence case had become known. The appellant was not in custody at the relevant time, and it was not submitted that a McKinney direction was required. No request for a special warning or direction was made during the trial. The circumstances of this particular incident were well ventilated, including Guse's concession that at the time he did not give the conversation "a second thought" that he had made no notes of it, and that he could not be certain as to the actual words used. The main point at issue seems to have been the risk of mistake or misunderstanding and this seems to have been adequately ventilated. In these circumstances we do not think it was incumbent upon his Honour to devise some special warning in relation to Mr Guse or his evidence.

At trial, defence counsel inter alia made the point that the appellant had demonstrated that he knew the stage of the complainant's menstrual cycle at the time, and suggested that he could only have known that if she had told him of it. The complainant denied having done so, and the appellant gave evidence to the contrary. In the course of the summing-up the learned trial Judge invited the jury to consider whether that submission was valid, and adverted to the possibility that such information might have been obtained from the appellant becoming aware of the medical evidence at or after committal. Counsel for the appellant submitted that these directions amounted to an allegation that the appellant had been guilty of recent invention, but that is just not so. The possibility mentioned by his Honour is a logical possibility that was open on the evidence and it was proper for his Honour to mention it when inviting the jury to consider the validity of a particular argument.

The principal issue was the question of consent. The appellant gave evidence admitting various activities but claiming they were consensual. The complainant's account was corroborated. It was also supported by a fresh complaint to Miss Banks. Her complaint of absence of consent is credible in the circumstances which, on either story, included her being blindfolded and having her pubic hair cut with scissors. More significantly there were a number of features of the respondent's account which might be thought difficult to credit. His version was to the effect that the complainant had not been out socially with him before; that she had pretended to be sick as "a ruse to get him out on the verandah with her"; that she had later allowed him to wrap a bandage (which earlier in the day had been wrapped around his bloody knee and was at the time drying on a heater) around her head from her nose to her hairline; that whilst blindfolded in bed he told her he was going to get scissors and proceeded to cut her pubic hair with them; that he had brushed the pubic hair off the bed; that she then consented to sexual intercourse and agreed to have coffee. She had then walked out whilst it was being made, leaving her handbag behind. He then concealed the handbag behind a bedhead because he feared that his wife, from whom he was separated, might have walked into the house and found it. It may also be mentioned that the pubic hair cuttings were found by the police, not on the floor, but apparently formed together in a ball on the bedhead.

In our view a reasonable jury properly instructed could reasonably arrive at a verdict of guilty.

The sentence for rape was six and a half years imprisonment. Concurrent sentences of two years were imposed with respect to the other offences.

The appellant was aged 42 and had a minor criminal history revealing mainly an unfortunate association with cannabis.

A short statement of the offence is that the complainant (a 34 year old woman) went out to dinner with the applicant and back to his house. There she was threatened with a knife, blindfolded and gagged, and her pubic hair was cut before she was raped. She escaped by jumping over a verandah.

The only mitigating circumstance is that the applicant was suffering depression and undergoing a difficult period of his life at the time of the offences. Also he has committed no previous offence of violence or of a sexual character.

Having regard to the seriousness of the circumstances we think that a sentence of six and a half years is towards the lower end of the appropriate range. There is no ground upon which it should be reduced. The application for leave to appeal against sentence will therefore be dismissed, along with the appeal against conviction.

Crimes (Sexual Assault) Amendment Act 1981

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