R v Salter [2002] VSCA 128

R v Salter [2002] VSCA 128 - VSCA 2002 case summary — Zoe

[23]

In my view, as I have said, the circumstances of this case did call for a direction by the judge that it would be dangerous or unsafe to convict the applicant upon the evidence of the complainant alone unless, having thoroughly scrutinized her evidence, and paying heed to the warning, they were satisfied of its truth and accuracy. In the peculiar circumstances of this case, it was not enough, in my view, for general directions to be given (as they were) as to the use which the jury could make of prior inconsistent statements made by witnesses; or the use which they could make of the "delay" which occurred between the alleged rapes and the complaint made in evaluating the complainant's evidence and its credibility. Those directions were, to my mind, altogether too bland to avoid the perceptible risk of a miscarriage which was inherent in the circumstances of this case. This was not so much a case of "delayed complaints" as it was, on the complainant's own evidence, of "selective complaints". The selectivity employed by the complainant in making her complaints to the police created, in itself, prejudice to the applicant. It meant that the applicant came before the jury as a person charged and convicted of violent offences arising out of the very events upon which the prosecution relied to prove counts 6, 7, 8 and 12. It was inevitable that these convictions, and the circumstances from which they arose, were going to be ventilated before the jury because they were inextricably interwoven with the circumstances upon which the Crown was relying to prove the counts charged on the presentment. Indeed, the record of the applicant's interview with the police alluded to them; the applicant understandably saying to the police, when questioned about the events giving rise to the above counts, that he had already been "dealt with" for those matters. In the course of instructing the jury as to the use which they could make of "uncharged conduct" his Honour referred to "alleged conduct associated with the events giving rise to the charge[s] on the presentment". In particular, he referred to the events out of which counts 6, 7, 8 and 12 had arisen. He told the jury that these were matters in respect of which, as the jury had heard, "the accused man has been dealt with already". However, his Honour went on:

[26]

Even more importantly, it seems to me that in the absence of a warning, of the type to which I have referred, and in the presence only of directions as to the use which could be made of "delayed complaint" (if the jury found there was "delay"), a danger arose that the jury would not understand the forensic impact of the "selectivity" employed by the complainant. This was not really a case of a witness making a prior inconsistent statement upon a matter relevant to an issue to be determined. This was a case where the Crown's principal witness, put before the jury as reliable and accurate, had previously made statements to the police, averred to be true, in which she had given a version of the same events, now said to support the counts on the presentment, which was materially different from the version being given to the jury. Indeed, as I have already noted, the version which she had previously given to the police of the events which occurred on 27 and 28 September 1997, on one view, excluded any form of sexual assault. It would seem to me, at least in respect of those events, no convictions could be recorded on the relevant counts unless the jury could exclude, as a reasonable possibility, that the previous version was true. The fact that she had previously given a version of events in such a materially different form so undermined her reliability as a witness of truth as to require more from the judge than a direction upon the impact of "delay", if a perceptible risk of injustice was to be avoided. Similar comments, as it seems to me, can be made about the complainant's statement to the police on 29 January 1999, shortly after the events which gave rise to the counts of rape charged in counts 16, 17 and 18, all of which resulted in convictions. According to the evidence, she told Senior Constable Allan that, on the day when these events occurred (which appears to have been very shortly before 29 January), she had had sex with the applicant to "calm him down". On the day before she had told her local medical practitioner that she had been assaulted by the applicant. Yet when she made her final statement on 6 March 1999, she said she had submitted to the applicant through fear, due to the fact that he was threatening her with a "knife". Although, in one sense, it might be contended that the events, as later described, could be said to be consistent with her earlier statement that she had had sex with the applicant "to calm him down", that statement would appear to be far more consistent with the version of events given by the applicant in his record of interview that he became upset because the complainant said she no longer loved him and threatened to kill himself by over-dosing.

[75]

"As a matter of law I must tell you that delay in complaining of sexual assaults does not necessarily indicate that a complainant's allegations are false. There may be good reasons why a victim of sexual assault may delay or hesitate in complaining about it. In the present case there was no complaint of sexual assault made at the time of the alleged offences although, as I have just referred to, other complaints of physical assaults were made on three occasions. You must consider whether in this case there are good reasons why no complaint was made earlier. The explanations given by the complainant were that she was frightened of the accuser's threats, she was embarrassed and ashamed as to what had happened and she was apprehensive of the court processes if she made a complaint of sexual assault. You may also think it relevant the fact that the complainant was 19 or 20 or 21. Also the fact that she was apparently living as husband and wife in a de facto relationship might have meant that she would not readily complain of intimate matters in the relationship even though she was prepared to complain to her neighbours and to the police about physical assaults to her. You have heard the evidence of the complainant about the threats she said the accused man made. You have heard his response in the police interview when these matters were put to him. I will go through the specific counts with you shortly. You must consider firstly, whether you accept the evidence of the complainant about these matters and whether in the circumstances it provides an explanation for the delay in complaint. That is a matter for you. It is necessary, however, that you take such delay into account when evaluating the complainant's evidence and in determining whether to believe her or not. In this case the accused man was able to recall or identify all but I think one of the particular incidents referred to and to give in some cases a detailed response. Some details he was unsure of and they have been referred to by counsel and some of them I'll refer to in going through the particular offences. It is appropriate for you to consider whether the accused has been significantly disadvantaged in defending himself because of the delay in complaining or whether the fact that he has been able to identify all but perhaps one of the incidents and to give detailed responses indicates that there was not significant disadvantage. Now, that is a matter for you. It is open to you to take into account the delay; the delay in complaining or the failure by the complainant to make complaints as a factor in your determination of whether the allegations made in this case are made out or not."[12]

At a glance

Court

Decision date

Before

Source

Judgment (135 paragraphs)

Parties

Legislation Cited (2)