R v Munday [2003] VSCA 189

R v Munday [2003] VSCA 189 - VSCA 2003 case summary — Zoe

[6]

The version given by the victim, which plainly enough the jury must have accepted, was that she knew nothing of the applicant's assault upon her until she awoke while the applicant was penetrating her. The applicant's version was somewhat different according to his record of interview. He said he had had a degree of encouragement while they were partying into the morning, although his description of it was not very specific and consisted of a few equivocal gestures of friendship towards him, which he took to be mildly flirtatious. The applicant agreed that they had both gone to sleep in the living room, the victim having fallen asleep some time before the others retired. Although he did not directly say so, one must surmise that he awoke again fairly soon, some time after 5 o'clock in the morning. At no stage did he suggest that the victim got up from where she was sleeping or otherwise awoke before he turned his attentions upon her. It seems that he lay close to her, probably on the floor, and then started rubbing her first with his foot and then with his hand. After a quarter of an hour or so he said that he attempted to rub her inside her pants. This is what ultimately led first to his penetrating her with his finger and then later, after removing her pants, with his penis. As to her agreement with this conduct, which was the foundation of his contention that she was consenting to intercourse of both kinds, he was unable to say that she uttered a single word. Though he said he sought her agreement, the most that communication from her came to were a few grunted murmurings "Mm, mm". This he interpreted as her agreement to intercourse when he tried to put that question to her. So he asserted that she had started waking up when he had been rubbing her with his foot or leg. He said he had concluded that she liked what he was doing to her, for thereafter she had moved around as though she was enjoying his attentions, in particular by moving her hips and buttocks backwards and forwards - "that was about it", as he put it. Later he said that she appeared to agree to his removing her outside and inner pants and had thereafter spread her legs apart, from which he again inferred that she was agreeing to intercourse. It is unnecessary to say more of the evidence of her supposed consent to intercourse, for it amounted to little more than I have just set out and came entirely from his record of interview.

[16]

Because of the controversy the rule has caused, one should be careful to distinguish the three kinds of circumstances in which the issue of complaint may become relevant. The present case concerns directions as to the use a jury may make of what were alleged to be recent complaints by the victim to her hosts in the early morning of the alleged attack on her and later that morning to the police. In many cases, however, there is no such evidence of any recent complaint, so that the issue then becomes what kind of directions the jury should be given, in the absence of any such complaint, as to what reasons they may fairly ascribe to the complainant for not complaining promptly and the inferences properly to be drawn therefrom. If the delay is modest and complaint is made within weeks or months, then often there is no obligation on the judge to give any directions as to failing to make any or any prompt complaint, unless the accused has raised delay at the trial, in which case the judge must "inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it": see s.61(1)(b) of the Crimes Act 1958 ("the Act"). There is, of course, yet another category of case in which it is considered mandatory to warn the jury, whether the issue is raised or not, that it would be dangerous to convict an accused unless they were entirely convinced of guilt, where a complainant has delayed for an extended period of years in making any complaint against the accused: see cases such as Longman v. The Queen[12]. The judge's duty in the latter class of case is predicated on the need to ensure a fair trial for the accused, in the first class on the need to clarify the limited use to which recent complaint evidence which may be favourable to the prosecution may be put and in the second class on the need to give a balanced charge where delay in making complaint is raised: see Crofts v. The Queen[13]. Each assumes that the timeliness or otherwise of making a complaint may be seen by the jury to be relevant, but quite different considerations apply because of the rules or principles which lie behind the need to give appropriate directions in each kind of case. In some cases directions suited for more than one category will be necessary for often there is a dispute as to how soon after the alleged events complaint was made.

[22]

But all this is the way lawyers explain the application of the hearsay rule. Thus, although lawyers would (or should) understand the explanation just set out, one must consider the actual contents of those complaints as they would strike the average jury member. Here, in each case they might have appeared to the jury to contain a relevant assertion about facts critical to the prosecution case, whether one accepted that she said that she had "just woken up to this dog raping me" or whether one accepted either of the versions of her two hosts to the effect that the applicant was "trying to have sex with her while she was asleep". There should be little doubt that, even if the jury were not prepared to accept that she had used the word "rape", she had been saying that the applicant had tried to have intercourse while she was sleeping and thus was not consenting to his actions. The critical point is, however, that the jury had to be warned that this was only hearsay, that it could not be used as proof or "independent evidence" supporting "the probability that the offence occurred", as the judge explained the matter to them. Otherwise to the jury's uninstructed ears, it would have been evidence, whether or not they realised it was hearsay, that the applicant raped the victim, so they had to be instructed carefully that the complaint evidence could be used in a limited way as part of the case supporting the prosecution, but merely for the different and lesser purpose of testing the consistency of the victim's account in the witness box. In broad terms that may be said to be an exception to the hearsay rule, although technically it is not, inasmuch as in unqualified form it contains hearsay material. It may also be said to be self-serving evidence, so far as that evidence was given by the complainant, but that objection seems of lesser consequence, especially as the purpose of allowing it to be adduced in cases of "recent complaint" is to enable the credit of the complainant to be supported.

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Judgment (101 paragraphs)

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