R v Munday [2003] VSCA 189

5. In the circumstances it is necessary to outline the facts giving rise to the application. The victim visited the suburban home of two friends on New Year's Eve 2000, taking with her her two young children and arriving during the afternoon. She brought with her some cans of beer which she drank throughout the afternoon, night and early morning and also smoked marijuana at various stages of the visit, in the course of what might be described as a modest New Year's Eve party. As a result of a telephone call the applicant also came to that house but arrived some time after midnight. He had also been drinking and he joined the three others in talking and drinking for some time into the early morning. The victim barely knew the applicant, having perhaps met him once before, and there was, at least in the view of one of the hosts, though denied by the victim, a little flirtation on her part during the course of the night's fitful celebrations.

8. At about 3.30 a.m. the victim "flaked", as the applicant described it, and fell asleep on or at the end of two small mattresses on the living room floor on which her two children aged 2 and 4 were already sleeping. It is also likely that the applicant went to sleep on the floor of the living room for some time. However, it appears that he awoke first and then proceeded to make advances on the victim who was still asleep at the foot of her children's beds. She was lying largely on her stomach and still wearing her clothing, such as she wore on that hot evening, when she had fallen asleep. It seems the applicant managed to undo both the pants she was wearing and her underclothing and then proceeded to penetrate her first with his finger and then with his penis. The victim awoke eventually discovering that her head was being held down and that she was being penetrated from behind. This was about half past five or six o'clock in the morning. She immediately told the applicant to get off. She made her displeasure known to him, using a number of expletives, even according to the applicant's own version, which appeared only from his record of interview as he did not give evidence at the trial. She immediately pulled her clothing up and went into her hosts' bedroom to complain.

11. 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.

14. As I have said, even according to the applicant, within five minutes of his commencing intercourse the victim had woken up, "wide awake" as the applicant preferred to call her new state of mind, and she had pushed him off and expressed her disapproval in strong terms, telling him, on his own account, that she was going to call the police. Then she had moved into the bedroom of her friends and had made complaint to them at some time between 6 and 6.30 in the morning. She had been crying and the description used by her according to her male host was: "I woke up and that dog c-..... was trying to root me, to the effect that I woke too". There was some difference, perhaps not surprisingly, between the various witnesses' recollections of the complaint, the female host recalling only her friend's distress and the complaint that the applicant was trying to have sex with her while she was asleep. The only witness who actually used in evidence the word "rape" was the victim herself, but her displeasure and her reference to penetration occurring while she was asleep made clear the broad nature of her complaint to each of her hosts.

17. By 7 a.m. she had packed her children up and left the house. When she arrived home at about 7.20 a.m. she had shortly afterwards rung the police and they had arrived at her home at about 7.45 a.m. and found her in a very distressed state, crying and upset. Thereafter she had complained of the applicant's conduct giving a full statement to the police. The applicant himself was interviewed shortly after 4 o'clock that afternoon.

20. In due course the applicant was presented for trial. The evidence took somewhat over two days and, after addresses, the judge summed up in some detail, especially as to the contentions of counsel. There were no exceptions but the jury asked to have a written statement of the three elements of the crime of rape, which was supplied to them. Thereafter the applicant was found guilty on both counts and subsequently sentenced.

24. The first ground relied upon on the present application related to recent complaint. It asserted that the learned judge had "erred in his directions to the jury on the use to be made by it of the evidence of recent complaint". In particular the applicant relied on his Honour's error in "(a) instructing the jury that the evidence was admitted as an exception to the general rule as to hearsay evidence; and (b) instructing the jury that `the reason for this exception is that it is considered in general that persons who are offended against sexually will complain about it'." It would, however, be fair to say that the argument presented by counsel attacked the whole of that part of the charge which dealt with the victim's complaint, asserting broadly that it failed to make clear that the only reason for its admission was to show, if that be the case, the consistency of the applicant's version of events as related in her evidence at the trial, so that its use was confined to the issue of the victim's credibility. It is necessary therefore to set out the whole of that part of the charge which read:

"This evidence is an exception to the rules which govern what is admissible in evidence and which excludes hearsay evidence. The reason for this exception is that it is considered in general that persons who are offended against sexually will complain about it. Thus evidence is allowed to be given in order to test the consistency of the conduct of the person making the allegation. Of course, these are commonsense propositions to which you should apply your own views of the evidence of the witness. It is for you to say in the circumstances whether you accept that [the victim] did make such a complaint and if you do accept what she said, whether the fact that she did make a complaint constitutes behaviour consistent or inconsistent with that allegation. You should bear in mind that the evidence of the complaint comes from the same source as the evidence of the allegations, namely [the victim]. It may or may not demonstrate consistency. I direct you it is not to be regarded as independent evidence of [the victim], giving additional support to the probability that the offence occurred. Its only effect is upon the consistency of conduct by her. It is not evidence of the truth of the contents, it is evidence that it was said by her. I direct you of course that the accused man is under no obligation to prove anything in this matter, or to come up with or provide any reason or motive as to why she would complain. The accused does not have to prove anything."

I should add that this form of charge coincided very largely with the form of model charge for evidence of recent complaint contained in the County Court charge book but that, after this trial, and, presumably as a result of the decision of this Court in R. v. Knigge[1], that model charge has been significantly reformulated, especially in the opening paragraph and by deleting the so-called reason appearing in the second sentence. I shall consider Knigge later in this judgment but I do not propose to analyse and comment upon every aspect of the new form of model charge. Sufficient for the purposes of this case and for others like it should appear hereafter.

29. The primary objection to the judge's charge on this issue was said to be that, by using this form of direction, the judge had invested too much significance in the evidence of the victim's complaints, primarily because the relevant consistency which the jury were entitled to evaluate should have been confined in terms to the consistency of the victim's evidence at the trial and in particular her account of the alleged acts of rape. The judge had wrongly, so it was contended, allowed the jury to consider generally the consistency of the victim's behaviour both in and outside the witness box.

32. The judge also, so it was argued, erred by giving the directions contained in the first two sentences of the first paragraph set out above, which it was said were reinforced by the rest of the paragraph and the charge relating to the complaints. It was contended that the judge should not have made the references he did to hearsay evidence nor to the stated reason for the exception to that rule.

35. It is unnecessary to examine in detail the history of the exceptional rule which permits evidence of recent complaint[2] to be given in trials of persons charged with sexual offences. Some description may be found in the following cases: R. v. Lillyman[3]; Commonwealth v. Cleary[4]; Kilby v. The Queen[5]; R. v. Freeman[6]; and R. v. H.[7] Discussion of the history may also be found in textbooks and journals, such as in Wigmore on Evidence[8]; Stone and Wells: Evidence, Its History and Policies[9] and in the article by Smith and Holdenson: "Comparative Evidence: Admission of Evidence of Recent Complaint in Sexual Offence Prosecutions"[10]. There are also some useful references to the history of the rule in the course of a succinct and convenient discussion of present principles in Cross on Evidence[11].

38. 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.

41. In the present case, however, there was really very little dispute that some complaint was made to the victim's hosts within minutes of the victim's terminating penetration by the applicant, while a more detailed report to the police was made within two hours after that, the only dispute being as to the consistency of the description given by the victim on those occasions. No question therefore arose as to delay in making complaint and the sole question was whether the learned judge properly confined the use to which the jury might apply that evidence in favour of the prosecution case.

44. The first two sentences of the first paragraph of the judge's charge on "recent complaint", indeed the whole of the first paragraph, were challenged in the course of argument on the ground that they wrongly stated the basis upon which evidence of such complaint was admitted and thereby placed too great significance on that evidence, having regard to its limited potential use. It was first said that it was wrong to describe it as an "exception" to the rule excluding hearsay evidence. The vice of describing it in this way was that, if the jury truly understood what was meant by an exception to the hearsay rule, it might treat the contents of the complaint by the victim as additional evidence supporting the prosecution case that the alleged offences occurred. Having regard to what in fact the judge said two paragraphs later, namely that it was "not to be regarded, as giving additional support to the probability" that the two offences took place and that it was "not evidence of the truth of the contents", I am not sure that counsel persisted in asserting that any miscarriage of justice occurred by reason of the evidence being mischaracterised as an exception to the hearsay rule. Moreover, as the judge also said, evidence of those complaints was to be treated as merely evidence of "the consistency of [the complainant's] conduct" for the purpose of testing her "allegations" in the witness box, which consistency "may or may not" be demonstrated.

47. As to the difficulties in relating complaint evidence to the hearsay rule one need only point to observations of members of the High Court in Suresh v. The Queen[14]. Arguably the first sentence of paragraph [4] in the judgment of Gaudron and Gummow, JJ. is inconsistent with the last sentence, but it is not difficult to see the point that was sought to be made, which was perhaps better explained by Gleeson, C.J. and Hayne, J. in Papakosmas v. The Queen[15], albeit that the case is otherwise concerned with the relevant provisions of the Evidence Act 1995 (N.S.W.). In the latter case at para.[12] it was said of the common law rules:

"Whether or not evidence of a statement made out of court is hearsay depends upon the use that is sought to be made of the evidence. Under the rules of evidence developed by the common law, it was the potential use of evidence of a statement made out of court as evidence of the truth of what was asserted in the statement that made it hearsay. The common law did not create an exception to the rule against hearsay by permitting evidence of complaint to be used for a hearsay purpose. Rather it permitted such evidence to be used for another purpose."

Because it was used only for the purpose of establishing consistency so, as was said[16] in para.[21] of the same judgment, evidence of complaint "could not be used in proof of the truth of the facts asserted", so that when received "it was dealt with in a manner regarded as consistent with the hearsay rule".

52. 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.

55. Consequently I do not think that the reference to an "exception" to the hearsay rule provides any ground for saying that the charge was relevantly erroneous or could found any basis for saying that there was a miscarriage of justice. Indeed it would have been quite wrong for the judge not to have explained clearly that it was not admissible hearsay evidence, so that a failure to draw attention to the fact that it could not be regarded as independent evidence as to the probability of the offence occurring would itself have been erroneous. The latter part of the charge in this respect, however, makes abundantly clear that it could not be so used.

58. Then again strong exception was taken to that sentence in the charge which read: "The reason for this exception is that it is considered in general that persons who are offended against sexually will complain about it." This passage has about it certain difficulties, but it is another thing to say that it misstates what has been accepted to be the broad assumption behind the rule allowing evidence to be given of recent complaint. One should say immediately that, on the whole, it is undesirable to try to explain to a jury the reasons which underlie propositions of law which have to be explained to them in the course of a charge. From time to time one sees examples of judges reading extracts from High Court judgments and textbooks to juries and ordinarily that has led to confusion at the least. On the other hand a simple explanation or a pertinent example sometimes gives life to a rule which otherwise might appear a stark statement of some legal proposition. I would not disagree that this sentence might better be omitted from future charges, as appears now to be recognised in the most recent version in the County Court charge book.

61. On the other hand, with great respect, I am by no means so sure, as asserted in Knigge, that it was an erroneous statement of the somewhat contentious assumption which lies behind the admission of recent complaint evidence. When the President said in Knigge[17] that the direction was "wrong in law", that strictly was unnecessary for the decision and I am by no means persuaded that it followed from the reference contained in the footnote to that proposition. That footnote referred to what Batt, J.A. said in R. v. R.H. McL.[18], which in turn referred back to what was said in R. v. Matthews[19]. As Kenny, J.A. said in the latter case "it was vital that the jury appreciate that the law did not oblige it to treat the complaint evidence in any particular way". That had been examined in detail by Callaway, J.A. in the same case who set out[20] the offending sentence of the charge in his judgment, as follows:

"But in a case of this kind, it is allowed to be given in evidence for one single purpose, but nevertheless, perhaps an important purpose: that of treating the consistency of behaviour of the prosecutrix, the legal theory being that those who are raped complain of it and those who are not raped do not complain of it."

As his Honour proceeded to explain[21], that clearly was not a correct statement of the law, nor, it might be said, was it ever a correct statement of any legal principle which historically lay behind allowing the Crown to lead evidence of recent complaint. It is clear that his Honour had doubted at first that it would lead to any miscarriage of justice, but in the end, he saw[22] the vice in the particular statement of the judge in Matthews as being that they were told what the "legal theory" was, which he thought was very similar to the use of the expression "the law says" which the President had thought undesirable in the charge considered in R. v. Stoupas[23]. In other words the clear connotation of the direction (in Matthews) was that the law required the jury to take one course if there had been a complaint and another course if there had been no complaint. The judge's authority had been added to a proposition which on any basis could not be justified. Probably the principal vice lay in the second, negative, part of the sentence, but there remained a difficulty in any event that the jury were being led to believe that the fact of complaint (or its absence) had a legal consequence, whereas the only consequence of a prompt complaint in law is to assist the jury to reach a conclusion as to the consistency of the complainant's evidence, if they think it appropriate to do so.

66. Thus, although it may be preferable not to direct juries as to the reasons behind certain principles of law, it does not follow that a statement of the kind made in the present case is a statement of law, nor that it should be taken fairly as having required the jury to reach a particular conclusion. Some, indeed many, may doubt whether there is a valid continuing logical reason behind allowing evidence of complaints to be given[24]. But the rule has not yet been abolished in this jurisdiction and it must be applied as best it may, having regard to the wide variety of circumstances in which complaints are or may be expected to be made, and it should be capable of adaptation according to those circumstances. What appears in the stated rationale for the rule is not so much a presumption of law, but rather an assumption of fact upon which the relevance of consistency is predicated when complaint is made promptly.[25] If there were no such rational expectation, then such evidence simply could not be admitted for, ex hypothesi, it could not demonstrate consistency.

69. However, statements by common law courts relating to the rule have in fact been expressed with relative consistency over the years, albeit that in recent times qualifications have been admitted and too emphatic generalisations have been discouraged. One may start with what was said by the Full Court to be an appropriate direction, in a case generally thought for many years to be authoritative, namely Freeman. There the Court said[26]: "If [the judge] admits [evidence of complaint], he will tell the jury that it is admitted only for their consideration as throwing light on the credibility of the prosecutrix in so far as it shows consistency in her account of the event and the kind of reaction ordinarily to be expected of a victim of such an incident as she complained of"[27]. Whatever be the criticism of the rule, there has been a line of authority in the High Court in recent years which has endorsed some such statement as being necessarily the factual assumption behind the rule. The line of authority may be said to start with the judgment of Gaudron, J. in M. v. R.[28] where, though insisting that the assumption be formulated in terms which are "neither sex-specific nor of general application", she accepted[29] the general proposition which was taken from the judgment of the Canadian Supreme Court given by Lamer, J. in Timm v. The Queen[30] as follows: "The true victim of a sexual offence will, under normal circumstances, complain at the first reasonable opportunity".[31] Her Honour, however, insisted that circumstances might require quite different statements as to any relevant assumption. Nevertheless implicit in her judgment, in my respectful opinion, is that some such statement will ordinarily form part of the judge's direction to the jury. Though she considered that it would frequently require adaptation, she concluded[32] that -

"there is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts with directions to the jury being fashioned to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms but which, clearly, cannot hold good in all cases".

73. What was said in M. v. R. was reiterated with approval by Gaudron and Gummow, JJ. in Suresh[33]. Again it was accepted [34] that the rationale for admissibility was "because of the tendency of people to assume, at least in earlier times, that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false". The joint judgment proceeded to state that the assumption was of "doubtful validity, particularly in cases of child sexual assault", so that great care had to be taken in circumstances in applying it where a judge was required to direct the jury in relation to a late complaint that there might be good reasons why persons might delay in making such a complaint. The circumstances, however, were very different from the present case. It would appear that Hayne, J. accepted the reasoning of Gaudron and Gummow, JJ.[35]

The same three judges referred to and approved what had been said in Suresh later in Graham v. The Queen [36], where they again stated that evidence of recent complaint was "admissible because of the general assumption that the victim of sexual offences will complain at the first reasonable opportunity ...".

78. That what I have just set out has remained, for all its defects, the basis for the reception of recent complaint evidence at common law was again recognised in Papakosmas, albeit the case concerned the relevant provisions of the New South Wales Evidence Act 1995. Gaudron and Kirby, JJ. reiterated[37] that the common law permitted evidence of "early complaint" so as "to counter an adverse inference that might be drawn with respect to the complainant's credit", because of the "tendency" which they repeated from the judgment of Gaudron and Gummow, JJ. in Suresh[38] which I have just quoted. The discussion[39] of the common law by Gleeson, C.J. and Hayne, J. appears to accept the same assumption, though the citations are largely of earlier authority. McHugh, J.[40], though doubting the factual validity of the common law premise, said that the common law rule made recent complaint evidence relevant to the credibility of the complainant "because the making of an early complaint is regarded as being consistent with what a complainant would do if he or she had been assaulted as alleged". Moreover he said[41] that "the view that is relevant to credibility has been stated so many times by judges that that aspect of the rule can probably only be changed by legislation, not judicial innovation". I should add that nothing I have read in Knigge on this issue would suggest that the common law rule is no longer valid, whatever its conceptual weaknesses and difficulties.

81. There is thus, in the broadest sense, no cause to doubt that the reason for the exception, as it was called, to the hearsay rule was that, as the judge put it, it was "considered in general that persons who are offended against sexually will complain about it". Indeed, unless some question of recent invention arises, the basis for admission of true recent complaint evidence must rest on a premise to the effect that people offended against will ordinarily make some prompt complaint. But in a case such as the present, where, if complaint had been made relevantly by the victim, it must have been accepted that it was made as promptly, or "recently", as might fairly be expected, no issue here could have arisen as to the second half of the proposition which derives from assumptions, now strongly criticised, that a failure to complain promptly denies consistency to an allegation of a sexual offence. Indeed, in present circumstances the stated premise should really be inverted, to the effect that, because a victim complains at the first reasonable opportunity about being raped (if the jury accepts that that occurred), then that makes it more likely, in general terms and for reasons of consistency if nothing else, that any allegations of rape committed by an accused are true. Because the statement was here expressed in general terms and because the charge later made clear to the jury that they did not have to accept this consistency but merely might use it on the basis that "it may or may not demonstrate consistency", then I cannot see that the applicant suffered any relevant miscarriage of justice by reason of this part of the direction. I reiterate that, in terms of the accepted common law, it was accurate in that it did no more than state what was obvious[42] and in language which made clear that the question of consistency was being left to the jury itself.

84. The rest of the attacks on the charge relating to recent complaint concentrated, I am compelled to say, more on the minutiae of the language than on the substance of the direction. It was in broad terms a clear and fair direction on a subject which is invariably clouded with controversy, though I would not say it was ideally expressed. As I have said already, the factual basis for the prosecution claims was simple. There was an immediate claim of sexual assault within a quarter to half an hour of its occurrence, followed by the reporting of the matter to the police within a further hour. No suggestion was made that the victim did not speak promptly to her hosts, although the applicant was not present to hear the conversation. Nor was it suggested that there was no complaint made during the course of the morning to the police. The only attacks on the merits of the complaint were a series of questions and some brief part of the closing address, each of which were directed to showing, so far as that was possible, that the factual accounts given by the victim were inconsistent with her present allegations and that her and the witnesses' evidence of her complaints were in themselves inconsistent. Although I think little of those suggestions, they were left clearly enough for the jury to consider and nothing stated in the charge could be taken as denying the jury's obligation to consider those factual aspects of the complaint allegations.

87. Rather the contention is made that the consistency referred to by the judge was not the relevant consistency, which should be based on a comparison of the account given in the witness box as compared with earlier versions of it contained in the recent complaints. So it was said that it was wrong to direct the jury that the evidence could be used in order "to test the consistency of the conduct of the person making the allegation". It was said that the judge should have made clear that the "allegation" was that which was alleged in the witness box at the trial and that the relevant "conduct" must be that comprehended only by the making of the recent complaints. One can immediately answer the second objection by referring to the first sentence of the second paragraph of that part of the charge set out above[43]

, where the judge said that, if the jury accepted that the complainant had made a complaint, then it was for them to say "whether the fact that she did make a complaint constitutes behaviour consistent or inconsistent with the allegation". The objection was still made that the "allegation" was unparticularised and thus could have referred to any occasion on which the victim had made such allegations. It was by no means clear what other evidence there was of the allegations being made at other times, for I think there cannot be the slightest doubt that the jury would properly have understood the judge's references to "allegations" as being references to those allegations which they had heard from the victim in the witness box at the trial. Moreover the judge carefully warned the jury that evidence of the victim's complaint came from the same source as did "the evidence of the allegations", pointing surely to the evidence given by the victim in the witness box.

92. Again objection was made that it was not made clear by the learned judge that complaint evidence was relevant only to credibility. It must be conceded that the judge did not use that word and perhaps it would be preferable for judges to make some reference to "credibility" or "credit", so long as the jury understands what is being described. But the point of referring to credibility is to emphasise that the evidence must not be used as general support for the allegations made by the victim against the accused. On that the judge made it entirely clear that he was directing them that complaint evidence was "not to be regarded as independent evidence", nor evidence "giving additional support to the probability that the offence occurred". To emphasise that his Honour continued by saying that the "only effect [of the complaint evidence] is upon the consistency of conduct by her", but that it was "not evidence of the truth of the contents". I do not believe that there was any further need in the circumstances of this case for the judge to refer to credibility, as he had made it abundantly clear that the use of the evidence was merely to test the consistency of the victim's account of the alleged crimes as given by her in evidence.

95. For these reasons I do not consider that ground 1 has been made out by the applicant.

99. Three added grounds related to the judge's directions as to consent, or, more precisely, as to his directions as to the applicant's belief that the victim was consenting. They were argued together without concentrating on the individual grounds, but it should be noted that ground 2 concentrated on a claimed failure to direct the jury that the prosecution's failure to prove that the applicant believed that the complainant had consented, even if that belief were objectively unreasonable, "would entitle him to an acquittal"; that in ground 3 it was claimed that by directing the jury that one issue was whether the accused believed that the complainant was consenting the judge had thereby reversed the onus of proof in that regard; and that the fourth ground claimed that the judge erred in that he failed sufficiently to relate the directions given on the applicant's belief in consent to the facts of the case.

102. For this purpose counsel took us to no more than two paragraphs of the learned judge's comprehensive charge. This again appears to me to be a case where, after the trial, the applicant's lawyers have trawled through the transcript of the charge in order to find some passage or other which might evidence some erroneous direction, if viewed in isolation, the kind of exercise which, more often than not, fails to recognise what the jury might fairly grasp from the totality of the directions given to them. It will be seen that it is not surprising in the circumstances that experienced counsel who appeared for the applicant at the trial did not appear to notice, nor to take exception to, the alleged errors or imbalances in the charge.

105. In my opinion, if one does have regard to the charge as a whole, then one cannot fail to come to the conclusion that the judge's charge on the issue of consent was entirely fair. If there be an occasional sentence which may, on its own, suggest that the relevant onus did not fall on the Crown, it nevertheless appears from the context and from the whole charge that the judge was making that clear throughout. From the very outset of the charge, the learned judge had made clear that the onus rested on the Crown, in a series of passages with which counsel for the applicant did not trouble us but which were brought to our attention by counsel for the respondent. Thus, very properly, the judge had identified in the very first sentence of his charge the two "central issues" of the case as being, in the first place, proof beyond reasonable doubt that the victim was not consenting to the applicant's sexual penetration of her and secondly, "whether the Crown has proven beyond reasonable doubt that the accused intended to commit the crime of rape, in the sense that he was aware either, (a) that she was not consenting, or (b) realised that she might not be consenting but was determined to go ahead regardless and sexually penetrate her whether she was consenting or not." Yet again on that very first page of his charge, his Honour drew attention again to the issue raised by the applicant "that at the very least he believed that she was consenting to such" penetration. A short time later, in giving the conventional legal charges to the jury, he emphasised the Crown's obligation to prove beyond reasonable doubt each element of the crime alleged and that it was "not necessary for the accused person before this Court to prove anything or to establish anything whatsoever".

108. When the judge turned to the elements of the charge of rape he correctly referred to them as consisting in the act of sexual penetration, the lack of consent on the part of the complainant and thirdly "the guilty mind of the accused". Having pointed out that the first element of penetration was admitted, his Honour then spent some time on the concept of consent, for indeed that was one of the two critical issues squarely raised by the applicant, albeit that he gave no evidence and relied solely on the evidential material in his record of interview. For this purpose the judge gave a number of directions, arguably favourable to the prosecution, but consisting to a large degree of what his Honour was obliged to say to the jury by reason of the definition of "consent" contained in s.36 of the Crimes Act 1958 and in particular the jury directions made mandatory by s.37 of that Act. Moreover, lest the jury be of opinion that his directions might have implied that the accused had to establish consent, he properly emphasised at this stage "that the Crown has to satisfy you beyond reasonable doubt that [her state of mind] was not" one of consent.

111. It was at this stage and in the light of his earlier directions that the judge turned to the third element and commenced by directing them as follows:

"The third element that needs to be proved beyond reasonable doubt by the Crown is the guilty mind of the accused. Moreover, the Crown must prove that the accused intended to commit the crime of rape, in the sense that at the time he committed the act of sexual penetration of the complainant ... he was aware that she was not consenting, or else realised that she might not be consenting and was determined to have sexual penetration of her whether she was consenting or not. In determining whether the accused believed she was consenting you must take into account whether that belief was reasonable in all the circumstances. This is one of the many guides which you may consider in determining the fundamental question, what was the state of mind of the accused at the time of the act of penetration." (Emphasis added.)

That was the only paragraph of the charge relied on by counsel for this purpose, of which counsel complained that it reversed the onus of proof, to which I shall refer shortly. One should, nevertheless, realise what the judge said to the jury immediately after the quoted passage. He continued:

"Did he intend to commit the crime of rape in the sense that at the time of penetration he knew that the other person was not consenting or being aware that this person might not be consenting persisted in the penetration regardless of whether that person consented or not[?]. In this case the defence states that even if the Crown has proven beyond reasonable doubt the first two elements of rape, namely penetration and secondly that the complainant ... did not consent, it has not proven this third element beyond reasonable doubt. The defence states that the accused clearly believed that she was consenting, that all her actions on that night and again immediately before penetration led the accused to believe she was consenting. Again, state the defence, her actions ... led the accused to believe she was consenting."

His Honour then briefly put the Crown case on this issue, but in terms that alleged that either the accused was "fully aware" that the victim was not consenting or that "at the very least the accused knew that [the victim] might not be consenting and went ahead regardless". Yet again the judge reiterated the need for the Crown to prove beyond reasonable doubt each of the three elements, referring again to "(3) the accused's guilty mind as I have defined it to you", before repeating the onus of proof concluding that if the Crown "fails to prove one or more of them he is not guilty of rape".

118. Some time later, after discussing a number of evidentiary rules and a number of other issues, the learned judge returned to what he perceived to be a risk of error into which the jury might fall, namely, that they might have the misconception that the dispute at the trial was merely one of accepting one of two opposite versions. So his Honour emphasised that it was "not simply a matter of making a choice between these two competing views", concluding again with his direction that the Crown bore the onus of proof on each element beyond reasonable doubt and that the accused had to prove nothing. Then to emphasise his point he repeated that "unless the Crown has proven to your satisfaction beyond reasonable doubt each element, then it is your duty to acquit". Pointing to the difficulty of there being no independent evidence, he nevertheless reiterated that "it is not simply a matter of making choices, the burden and onus of proof always rest upon the Crown, not upon the accused". He likewise emphasised the need to give the complainant's evidence "the most careful scrutiny" before being satisfied beyond reasonable doubt of the accused's guilt. Thereafter he set out in some detail the contentions of counsel on both sides, including, in particular, defence counsel's submissions about the applicant's belief that the victim had been consenting. Finally, at the request of the jury, the judge provided a succinct written summary of the three elements the Crown had to prove, in terms which were not criticised on this application and which were largely repetitive of what had already been said.

121. Returning then to the passage, indeed the sole passage, on which counsel relied on this purpose, it will be remembered that the learned judge said that, in considering the applicant's belief as to consent "you must take into account" whether his belief was reasonable in the circumstances, but that was one of "the many guides" which the jury might consider "in determining the fundamental question, what was the state of mind of the accused" at the relevant time. It was contended that this reversed the onus of proof because it left it an open question whether the accused had the relevant belief, whereas it should have emphasised that the burden was on the Crown to show that he did not hold that belief. I am afraid I cannot accept that contention. What was said immediately before and indeed immediately after that statement made clear how firmly the onus rested on the Crown, as did the carefully expressed direction given some time later to overcome any possible misconception on the part of the jury, a misconception which in any event I think unlikely because of this constant repetition as to where the onus of proof lay.

124. It is conceivable that, on its own, the passage complained of, that is the last two sentences of the paragraph, might have suggested that the applicant had to establish belief in the complainant's consent, in that it commenced with the words "[i]n determining whether the accused believed she was consenting ...". The use of that language is, however, largely dictated by the mandatory terms of s.37 of the Act which requires that "the judge must direct the jury that ... (c) in considering the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances". Perhaps the judge's attempt here to introduce that direction changed the language ever so slightly to suggest a change of onus, but it could not fairly be so understood having regard to the judge's oft-repeated directions on onus, especially those before and after this passage. Nor can one fairly interpret the second sentence as altering the stated onus, when it posed "the fundamental question, what was the state of mind of the accused" at the relevant time. That was the critical question, but the jury must have known that it could only be answered by applying the onus of proof so clearly laid down by the judge.

127. Counsel for the applicant maintained that the judge failed, at least at this stage, to direct the jury that the issue was whether the prosecution had proved beyond reasonable doubt that the applicant did not hold the requisite belief as to the complainant's consent. It is true that his Honour expressed the question in those terms on only a very few occasions in his charge, but he did state and emphasise, correctly, on many occasions, including in the written directions, that the Crown had to prove that at the relevant time either the applicant was aware the complainant was not consenting or at least realised that she might not be consenting. That seems to me to express the relevant issue in correct terms although eschewing the use of the word "believe" or, more precisely, the expression "not believe".

130. It was further argued that it was "utterly irrelevant whether such a belief under consideration be reasonable or unreasonable". Whatever the position was at common law, however, that is precisely what Parliament now says may be relevant and, moreover, that is what it says the jury have to be told when it is relevant, namely that the reasonableness of the accused's belief must be taken into account. Counsel then appeared to put an alternative lesser proposition, namely that the reasonableness of the belief is "not determinative of the question". That may be accepted, although it is by no means clear that s.37(1)(c) allows for such a qualification, but the judge here expressly said that reasonableness was just "one of many guides" in determining the fundamental issue. It would seem that thereby his Honour was in fact accepting that reasonableness was not the only determinative factor having regard to paragraph (c). What the judge said was correct and this contention must be rejected.

133. It was next argued that the learned judge failed to relate the facts to the issue whether the applicant had a belief in the victim's consent. That contention seems, on my reading of the charge, to be simply untenable, for on many occasions, including immediately after the impugned paragraph, the judge related the relevant factual contentions to the legal issues raised.

136. Finally it was asserted that the judge should have directed the jury in terms that failure to prove the absence of any belief by the applicant, even if it were unreasonable, that the complainant consented, would entitle the applicant to be acquitted. Likewise it was said that his Honour failed to state that the accused might have had an unreasonable but honest belief in the complainant's consent to his having intercourse with her. But the judge at no stage said that the prosecution had merely to establish that such a belief was unreasonable in order to prove that the applicant had the necessary intent. It might be said that the applicant's case, taken as it was only from his answers in the interview, did not extend to any direct claim that he was mistaken in his belief that the victim was consenting, but I am inclined to assume that the matters raised by him, especially her alleged consciousness at the time and her apparent consent, albeit that it was rather a case of lack of objection, provided sufficient material for his counsel to contend that he was under a mistaken belief as to her consent. I am not persuaded, however, that it was necessary for the charge to be fashioned so as to raise the issue in the manner counsel suggested, because the issue was at all times, as the judge properly put it to the jury, that they had to be satisfied that the accused was either aware that his victim was not consenting or alternatively realised that she might not be consenting. It is therefore my conclusion that the learned judge both adequately and fairly raised the issues which had to be resolved by the jury in terms which left the onus throughout on the Crown to prove that the applicant had the necessary intent.

139. For these reasons I would reject each of the grounds relating to consent. No further argument was put in relation to a fifth ground asserting that the verdict was unsafe and unsatisfactory, so that it is unnecessary to deal with it. In consequence the application should be dismissed.

144. I agree with the learned presiding judge, substantially for the reasons his Honour gives, that the jury would not have misunderstood the way in which evidence of proximate complaint[44] was to be used or failed to appreciate that, in the circumstances of this case, the Crown had to prove beyond reasonable doubt that the applicant did not believe that the complainant was consenting. There are two points I wish to add.

147. The part of the charge dealing with proximate complaint read:

"In this case you have heard evidence from [the complainant] that she complained and made a complaint to several persons. That [the complainant] complained immediately to Alice Davis shortly after sexual penetration, and that she also complained later that morning to the police. This evidence is an exception to the rules which govern what is admissible in evidence and which excludes hearsay evidence. The reason for this exception is that it is considered in general that persons who are offended against sexually will complain about it. Thus evidence is allowed to be given in order to test the consistency of the conduct of the person making the allegation. Of course, these are commonsense propositions to which you should apply your own views of the evidence of the witness. It is for you to say in the circumstances whether you accept that [the complainant] did make such a complaint and if you do accept what she said, whether the fact that she did make a complaint constitutes behaviour consistent or inconsistent with the allegation. You should bear in mind that the evidence of the complainant comes from the same source as the evidence of the allegations, namely [the complainant]. It may or may not demonstrate consistency. I direct you it is not to be regarded as independent evidence of [the complainant], giving additional support to the probability that the offence occurred. Its only effect is upon the consistency of conduct by her. It is not evidence of the truth of the contents, it is evidence that it was said by her. I direct you of course that the accused man is under no obligation to prove anything in this matter, or to come up with or provide any reason or motive as to why she would complain. The accused does not have to prove anything." (Emphasis added.)

151. The main focus of counsel's submissions was the first italicized passage. As Ormiston, J.A. has explained, its tenor was different from the kind of language considered in R. v. Matthews[45] and R. v. R.H.McL[46]. It was even more qualified than the words considered in R. v. Knigge[47].

154. I was concerned by the second italicised passage: it was not for the jury to say whether the fact that she made a complaint constituted behaviour consistent or inconsistent with the allegation but rather whether that fact did, or did not, constitute behaviour consistent with the allegation.[48] Read literally and in isolation, the words his Honour used may have led the jury to believe that they had to use the evidence of proximate complaint either for or against the complainant and that, as the fact that she complained was obviously not inconsistent with the allegation, it had to be regarded as buttressing her credit. The Director persuaded me that in the circumstances of this case, where no exception was taken, that slip occasioned no miscarriage. Moreover, it is not to be read in isolation and the alternatives were stated correctly two sentences later.

157. Section 37(1) of the Crimes Act 1958 provides:

"(1) If relevant to the facts in issue in a proceeding the judge must direct the jury that-

...

(c) in considering the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances- and relate any direction given to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction."

Sub-section (2) prohibits the judge from giving the jury a direction of a kind referred to in sub-s.(1) if the direction is not relevant to the facts in issue in the proceeding.

162. In this case there was no risk that the jury would think that the matter of reasonableness was determinative. It was, as his Honour said, simply a guide and one guide among many. It will often be desirable, nevertheless, to balance the direction required by s.37(1)(c) with a clear statement that the accused's belief does not have to be reasonable as a matter of law and that the Crown must prove that, in fact, he was aware that the complainant was not consenting or might not be consenting. As Southwell, A.J.A. and I said in R. v. Ev Costa[49]:

"Thirdly, whilst the standard charge is perfectly correct in directing the jury that `[i]n determining whether the accused believed she was consenting, you must take into account whether that belief was reasonable in all the circumstances', it would often be desirable to explain to the jury in simple language that the reasonableness or otherwise of a belief is no more than a guide to whether it was in fact held. As the Full Court said in R. v. Lucin (unreported, 25 March 1994) at pp.10-11, `It does not follow that the unreasonableness of [the accused's belief] renders the defence untenable. It is merely a factor for the jury to consider in determining the accused's state of mind'." (Emphasis added.)

168. I agree with Ormiston, J.A. I agree also in the two points added by Callaway, J.A.

[1] [2003] VSCA 94.

[2] I shall use this term because it has persisted, notwithstanding criticism that the word "recent" reverses the relevant concept, i.e. it is the sexual attack which should be "recent", not the complaint. Preferably it should be described as the rule relating to "prompt complaint", at least in my personal opinion.

[3] [1896] 2 Q.B. 167 (C.C.R.).

[4] (1898) 172 Mass. 175 (per Holmes, J.).

[5] [1973] HCA 30; (1973) 129 C.L.R. 460 at 466-472 per Barwick, C.J.

[6] [1980] VicRp 1; [1980] V.R. 1.

[7] [1997] 1 N.Z.L.R. 673 at 682-689 per Thomas, J. One should, however, note the caveat expressed by Eichelbaum, C.J. and Heron, J. in the same case (at 680) as to the views of Thomas, J.

[8] (Chadbourn Revision) paras.1134ff. and 1760ff (Vols. IV and VI, respectively).

[10] (Part 1) (2001) 75 A.L.J. 623-638. Part 2 of the article (75 A.L.J. 694) deals solely with the alterations to the law effected by the Evidence Act 1995 (N.S.W.). Another article in the same volume also makes some reference to the historical background, but concentrates primarily on recent statutory changes: see McGinley: "Relevance of Recent Complaints in Rape Cases" (2001) 75 A.L.J. 772.

[11] (Australian Looseleaf and On-Line ed.) 17260-17295.

[12] [1989] HCA 60; (1989) 168 C.L.R. 79.

[13] [1996] HCA 22; (1996) 186 C.L.R. 427.

[14] [1998] HCA 23; (1998) 72 A.L.J.R. 769 at 770 para.[4], as concurred in (semble) by Hayne, J. at 781 para.[63].

[15] [1999] HCA 37; (1999) 196 C.L.R. 297 at 302-303 para.[12] and at 306-307 at paras.[21]-[22].

[18] [1998] VSCA 61; [1999] 1 V.R. 746 at 773.

[19] [1998] VSCA 2; [1999] 1 V.R. 534 at paras.[12], [13] and [16] per Callaway, J.A. and at para.[21] per Kenny, J.A.

[21] At 539-540 paras.[12]-[17], esp. para.[17].

[23] [1998] 3 V.R. 645 at 651.

[24] See, e.g. R. v. H. per Thomas, J. (supra) and the materials to which he referred.

[25] Cf. per Gaudron, J. in M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 514.

[26] At 6 per Starke, McInerney and Murphy, JJ.

[27] The Court was speaking there of charges of rape, as at that time defined, and the language has been later expressed in broader terms: see e.g. per Gaudron, J. in M. v. R. at 513-515.

[30] [1981] 2 S.C.R. 315 at 321.

[31] Shortly thereafter, in 1983 the Canadian Criminal Code was amended (see S.C. 1980-81-82-83 Chapter 125) so as to abolish the law relating to recent complaint: see the judgment of Doherty, J.A. in R. v. Batte [2000] ONCA 312 at paras.138-156 (Ontario Court of Appeal).

[35] At 781 para.[63]. Any doubt about the extent of the concurrence of Hayne, J. must be overcome by his joining in the joint judgment in Graham: see below at fn. [.

36] [1998] HCA 61; (1998) 195 C.L.R. 606 at 610 para.[12].

[42] I am talking of the positive aspect of the assumption, not the negative, which has been so heavily criticised. The fact that the negative aspect may be relevant in cases where there is dispute as to the prompt making of complaint makes it undesirable to use this sentence of the charge in other cases.

[43] See at para.[[] above.

44] That is the expression used by Barwick, C.J. throughout most of his judgment in Kilby v. R. [1973] HCA 30; (1973) 129 C.L.R. 460. It is preferable to "recent complaint", although the latter usage is entrenched. It is supported by meaning 2b in the Oxford English Dictionary but, in the usual sense of the word, when a complaint is made, it is the offence that is recent, not the complaint.

[45] [1998] VSCA 2; [1999] 1 V.R. 534.

[46] [1998] VSCA 61; [1999] 1 V.R. 746.

[47] [2003] VSCA 94 at [21]- [22]. In the present case the judge said that "it is considered in general that persons who are offended against sexually will complain about it".

[48] Although the terms of the complaint may be taken into account, it is the fact of complaint that is primarily relevant. See, for example, R. v. J (No. 2) [1998] 3 V.R. 602 at 616.

[49] Unreported, Court of Appeal, 2nd April 1996 at 22.