R v Warner [1995] QCA 49

Court of Appeal (Qld)|1995-03-03|Before: Before Pincus J, Davies J, McPherson J, Pincus J, Pherson J

The appellant was convicted on 4 October 1994, after a trial in the District Court, of indecent dealing with Melissa Kim Yewsang, a girl under the age of 12 whilst in his care. He appeals against that conviction.

At the time of the alleged commission of the offence, 3 July 1993, Melissa was about 9½. She was nearly 11 at the time of trial. Her parents were separated. She lived with her father and step-mother but spent two weekends out of four with her mother and the appellant who lived in a defacto relationship.

On Saturday 3 July 1993 which was on a weekend which Melissa was spending with her mother and the appellant she awoke to find the appellant sitting on her bed. His jeans and underpants were down and his penis was exposed. He said: "Look at this". He then forced his penis into her mouth. Afterwards he put her hand on his penis. She took it away after a short time and he then pulled up his trousers and walked out.

When she gave evidence Melissa said that she told her brother Andrew what had happened either on the same day or the next day. However her brother, who also gave evidence, said that she told him about it a week later. In cross-examination Melissa accepted that this was also what she had said on an earlier occasion. It may be accepted for the purposes of this appeal that Melissa's complaint to her brother Andrew was made for the first time about a week after the alleged commission of the offence.

The first ground of appeal is that this complaint should not have been admitted because it was not made "at the earliest reasonable opportunity": Kilby v. The Queen [1973] HCA 30; (1973) 129 C.L.R. 460 at 466; R. v. Osborne [1905] 1 K.B. 551 at 561. Melissa had remained at her mother's house for the balance of Saturday and all of Sunday. She had then returned to her father's house where she had remained all of the following week before making the complaint on the following weekend. For most of that week she was in the company of her brother Andrew. He was with her at her mother's house on the weekend of the alleged offence, he walked to and from school with her from Monday to Friday of the following week and he was in her company for a great deal of the time other than whilst she was at school during that week. Whilst at school that week she was in contact with teachers whom she knew. She also saw her father each night and morning during that week and, when she was not at school, her step-mother with whom she got on well. It was submitted by the appellant that, given these opportunities to complain to her mother, her brother, her teachers, her father and her step-mother, her first complaint, made to her brother a week after the alleged offence was not one made at the earliest reasonable opportunity and therefore should have been excluded from evidence by the learned trial judge.

Evidence of complaint, soon after the commission of the alleged offence, by a complainant in a sexual offence case is admissible as an exception to the general rule that evidence of previous consistent statements is not admissible. Generally a person cannot give evidence of a previous statement by him or her consistent with the evidence being given; nor can another witness be called to prove such a statement. The rationale for the general rule is presumably "... that all trials, civil and criminal, must be conducted with an effort to concentrate evidence on what is capable of being cogent ..." (Fox v. General Medical Council [1960] 1 W.L.R. 1017 at 1024-5 per Lord Radcliffe) and evidence of this kind generally lacks cogency.

The historical basis for this exception appears to be "... the ancient requirement that a woman should make hue and cry as a preliminary to an appeal of rape ... " (Commonwealth v. Cleary (1898) 172 Mass. 175 at 176; Osborne at 559-560). The raising of hue and cry was not, however, limited to cases of rape or similar offences; it applied to all cases of felony. And although the requirement that the victim make prompt complaint may have persisted longer in respect of rape than it did in respect of other offences (Blackstone: The Commentaries on the Laws of England, 4th ed. London 1876, vol.4 at 213) there were offences other than rape or like offences in which it was held that evidence of complaint was admissible: R. v. Wink [1834] EngR 621; (1834) 6 Car.&P. 397 (robbery); R. v. Ridsdale, Ros.Cr.Ev. (13th ed.) 24, Roscoe, Criminal Evidence, 13th ed. at 24 (shooting); and R. v. Folley (1869) 60 J.P. 569 (wounding). In the last of these cases it was said that complaint was admissible in all criminal cases.

However there have been numerous civil cases in which evidence of complaint has been rejected; see for example Beatty v. Cullingworth (1896) 60 J.P. 740, Jones v. South-Eastern and Chatham Railway (1918) 87 L.J.K.B. 775, Gillie v. Posho Ltd. (1939) 2 All E.R. 186, De B. v. De B. [1950] VicLawRp 44; (1950) V.L.R. 242 and Anderson v. Anderson (1965) Q.W.N. 15; though the reasons for rejection are not consistent and clear.

The rationale of the exception is that, unlike evidence generally of previous consistent statements, such a complaint may be cogent proof of consistency with the victim's evidence of commission of the offence thereby making that evidence more reliable. Hence the requirements, leaving aside for the moment their precise formulation, that the complaint must be prompt and spontaneous; and the qualification that it is relevant only to the reliability of the complainant's evidence not as evidence of the truth of the facts stated in the complaint. This rationale also allows evidence to be given of a failure to complain where one would ordinarily have been expected: Kilby at 465, 472; R. v. Davies (1985) 3 N.S.W.L.R. 276 at 278. And it explains why previous consistent statements are admissible to rebut an allegation of recent invention.

It is the proper formulation of the first of the above requirements, that it be promptly made, and its application to the facts of this case which are in issue here. The most common formulation of this requirement is that it be made "as speedily after the acts complained of as could reasonably be expected" (R. v. Lillyman [1896] 2 Q.B. 167 at 171), "at the first opportunity after the offence which reasonably offers itself" (R. v. Osborne at 561) or "at the earliest reasonable opportunity" (Kilby at 465, 473). Having regard to the rationale for the rule, that formulation of the requirement (I do not see any material difference between the passages quoted) may state it too narrowly. A complaint may be capable of supporting a complainant's account even if not made at the earliest reasonable opportunity, particularly if "reasonable" in that formulation denotes an objective test unrelated to circumstances peculiar to the particular complainant. A more satisfactory formulation, in our 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. Its function is "to negative any effect the 'alleged victim's silence might have on her credibility'": M. v. The Queen [1994] HCA 63; (1994) 69 A.L.J.R. 83 per Gaudron J. at 96. The circumstances would also include any which were peculiar to the complainant such as her age, any reason for her not having made the complaint before she did (R. v. Sailor C.A. No. 301 of 1992, judgment delivered 26 February 1993 per McPherson J.A. at 4-5) and whether it was made spontaneously or only after direct inquiry or prompting or even threats or an inducement (R. v. Adams [1965] Qd.R. 255). Whether or not, having regard to those circumstances, the evidence is capable of supporting the complainant's credibility is a question for the judge. If it does not have that capacity the judge should exclude it or, if it has been admitted, direct the jury that they should disregard it. If it has that capacity it is a matter for the jury as to whether it in fact supports the complainant's credibility. Cf. R. v. Ives [1973] Qd.R. 128 at 133; R. v. Peake (1974) 9 S.A.S.R. 458 at 461-2.

Whether the requirement is stated in the way stated in the above cases or in the way in which we prefer, those circumstances are relevant to its application. In the present case, as we have said, the victim was, at the time of the alleged commission of the offence, only 9½. At that age a child would have much less capacity for premeditation than an adult, or even an adolescent child. Moreover the complaint was not prompted and was made to Melissa's brother, then aged about 12, who, because of his age, was unlikely to act on it himself and could not be expected to pass it on to someone who would. She also had some reason not to complain. She was obviously fond of her mother and would not have wanted to endanger their relationship. Making the complaint which she did plainly did endanger that relationship. Although there was some evidence of custody proceedings pending between her mother and father there was no evidence that these had affected her relationship with her mother or that she had any animus against the appellant. But Melissa gave no reason for the delay of apparently one week in making the complaint.

The circumstances to which we have referred lead us to conclude that, notwithstanding the delay in making it, the complaint was capable of supporting the complainant's testimony; and, having regard to the circumstances, we would conclude that it was made at the "earliest reasonable opportunity". It follows that it was correctly admitted into evidence and that this ground of appeal fails.

The second ground of appeal is that the verdict was unsafe and unsatisfactory. There are two bases for this. The first is inconsistencies in the evidence of the complainant; the main one being between, on the one hand, her version to the police and evidence given on a previous occasion that this offence was one of a series of similar events and, on the other, her evidence at trial that this happened only once. It was submitted by the appellant that this was a dramatic change.

Superficially that is correct. But there were three factors which bore on this apparent inconsistency. The first is Melissa's age at the time of the offence and when she gave evidence at the trial. The second is the time which elapsed between, on the one hand the commission of the offence and her statement to the police and, on the other, the trial, which was about 15 months. And the third and most important is the way in which she was cross-examined. This would have been likely to confuse an adult. She was often asked questions which consisted of a number of sentences not wholly consistent with one another. Words unfamiliar to a child of that age were frequently used. She could not help but have been confused by all of this. The jury had the opportunity to observe her as she gave her evidence and the learned trial judge gave them an appropriate warning about the inconsistencies in it. We think that they were entitled to accept her evidence as reliable with respect to the offence charged.

The other basis for this ground was the suggestion that she had been, to some extent, coached in her evidence by her father and step-mother. But the best example which the appellant could give of this was that they reminded her that she had first complained to her brother rather than, as she had later recalled, to her sister. We do not think that either this lapse in memory or reminder by her father and step-mother rendered Melissa's evidence unreliable.

There was initially a third ground of appeal, that the learned trial judge should have discharged the jury when it was disclosed that there was a substantial risk that the jury might have become aware during the course of the trial that the appellant had a criminal history. This ground however was not pursued in argument because, as the appellant's counsel rightly conceded, there was no basis for a submission that a document disclosing the appellant's criminal history, which at one stage of the trial lay on the Bar table, may have been seen by members of the jury.

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