Eastough v The Queen [1998] WASCA 53

R v Adams and Ross [1965] Qd R 255

R v Manning (1910) 13 WALR 6

R v Warner [1996] QCA 246; (1995) 78 A Crim R 383

Reppas v The Queen (1998) 20 WAR 178

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Miller J, with which I am in agreement. I would therefore dismiss this appeal.

2 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by Miller J. I agree, for the reasons given by his Honour, that the appeal should be dismissed.

3 MILLER J: The appellant was convicted in the District Court at Perth of four counts of sexual penetration and two counts of attempted sexual penetration of a child aged between 13 and 16 years. The offences occurred between 1 August and 23 August 1999 at Carnegie, Geraldton, Port Hedland, Pardoo and Broome during the course of a camping trip which involved the family of the complainant and the family of the appellant.

4 The complainant, who was born on 25 January 1986, was 13 years of age during the period in question. She gave evidence that the appellant had either sexually penetrated her or attempted to sexually penetrate her at the various locations at which the two families were staying during the period 1 and 23 August 1999. She testified that whilst at Pardoo she was "really confused and scared and anxious and angry ... mainly because (she) didn't know what ... was going on". In consequence she wrote an account of what occurred. She described it as "like a note or a letter to myself or a poem. It doesn't rhyme or anything but it was just to get it down on paper". What she wrote was a clear account of having had sex on six occasions with a married man. A portion of the note was in these terms:

"Life is shit sometimes - anonomous.

I love a man.

I hate his wife.

I like his son.

Till death do us part.

We had sex 6 times.

I loved every moment of it.

He left me for his wife's sake.

I am still crying on the outside and in.

I allways will ...

I have not told anyone anything.

I have not decided who to tell first.

He told me he loved me.

I'm not sure I believe him."

5 It appears that the complainant first wrote the note on toilet paper and then copied it onto A4 paper. Her evidence in this respect was as follows:

"Okay. When you had written that, what did you do with it? --- The first time I wrote it out it was on toilet paper and I threw that in the fire and then - no, and then I copied it down onto good A4 paper and then I - yeah, and then I threw the toilet paper copy in the fire and I folded up the other one and forgot about it and left it in my jeans pocket."

6 When the camping group had moved on to Broome the note written by the complainant accidentally came to the attention of her father. He testified that he found the note in these circumstances:

"Now, Mr Turner, did you discover something in Broome whilst you were doing the laundry? --- Yes, I did. I examined the clothing carefully on the camping trip when doing the laundry to get rid of any dust that was in turnups of jeans and things. Pockets and cuff were emptied and I found a piece of paper in Kayo's pocket which ---

How long had you been in Broome when you found that? --- It was the second day, to the best of my belief.

The second day? --- The second day.

So you found a piece of paper in Kayo's jeans pocket when you were doing the laundry? --- Yes.

I wonder if Mr Turner could be shown that document, please.

NISBET DCJ: Exhibit 1."

7 The note was the subject of tender by the Crown through Mr Turner at trial. However, it had earlier been indicated by counsel for the defence that it was to be tendered as a defence exhibit. How that came about I will later refer to.

8 Having found the note in the pocket of his daughter's jeans, Mr Turner confronted his daughter with it. His evidence as to the confrontation was as follows:

"Mr Turner, I just want to take you back to Broome to the stage where you found the note and you spoke to your daughter Kayo after finding the note. Do you remember what you said to her and what she said to you? --- I showed her the note and said that I'd [found] this in the pocket of her jeans, what did it mean? And she burst into tears. I said, 'Is what's on this note true?' And she said, 'Yes'. I was extremely upset. I didn't shout at her; I simply said that I was upset.

Now, what happened when you got back to Melbourne? --- We discussed it on the way back on the trip and we decided it would be a good idea to report the matter to the police so that there would never be another occurrence.

When you say you discussed it during the trip on the way back to Melbourne, I won't ask you for all the details but during those discussions did Kayo give you the details? --- She did.

And was the matter then reported to police when you got back to Melbourne? --- The matter was reported to the Victorian police, yes."

9 Mr Turner was cross-examined by counsel for the defence and more details of the discussion between Mr Turner and his daughter were elicited as follows:

"No. When you confronted her with the note that you'd found she began to cry, did she not? --- She did.

I think you said she burst into tears but she confirmed what was in the note was true? --- She did.

Yes. And because there was a mention of a man - I think it starts off, 'I love a man'. There was mentioned of a child and a wife. You took that to mean your friend Clive Roberts? --- It didn't take a brain surgeon to work that out, sir.

She confirmed that it was Clive Roberts? --- She did.

And she also told you that she didn't want him charged by the police? --- That is correct.

Because she loved him? --- That is correct.

And you had about a 5-minute conversation with her after that, the details of which I haven't got in your statement but I'm sure that perhaps you just can't remember them? --- I can't recall the exact words, no, sir."

10 The evidence of the complainant had been given on video on 18 July 2000. She was extensively cross-examined by very experienced senior counsel for the defence and particularly in relation to the note, which was produced to her by counsel for the defence. The thrust of the cross-examination was that the complainant was infatuated with the appellant, had invented the account of sexual experiences with him and "trapped herself" into proceeding with the prosecution. Counsel for the defence made it quite clear during the cross-examination that he wished to tender the note.

11 At the conclusion of the video recorded evidence the learned trial Judge pointed out that the note had been introduced by defence counsel in cross-examination. His Honour said that he would receive the note and also a number of photographs into evidence as exhibits but would not allocate them numbers or letters of identification, leaving it to the trial Judge to do that. As I have pointed out, when it came to the trial, the learned trial Judge simply accepted the note as evidence and numbered it without actually indicating on whose behalf it had been tendered. However, the history of the proceedings makes it quite clear that it was at all times intended to be an exhibit tendered by the defence.

12 It should therefore be seen that far from there being any objection to the tender of what would otherwise be a self-serving statement of the complainant, counsel for the defence actually sought to tender the document himself. This was clearly for tactical reasons, as counsel for the defence wanted to cross-examine the complainant at length on the contents of the note to bolster the defence proposition that the complainant had become infatuated with the appellant and invented the allegations of sexual assault.

13 It was admissible on that basis when the complainant's father gave evidence, there was no objection to his recounting the circumstances in which he found the note and the confrontation he had with his daughter over it. Indeed, as I have pointed out, counsel for the defence elaborated upon the matter by further cross-examination of Mr Turner in relation to the conversation he had with his daughter. In these circumstances, it can properly be said that the evidence in relation to the complainant's written account of what had happened between herself and the appellant and the circumstances in which her father became aware of it was evidence adduced with the clear consent and encouragement of the defence. In this respect the case is not unlike that of Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769, where McHugh J (at [21]) said:

"Plainly, counsel for the appellant did not see the complaint as giving rise to any of the difficulties that defence counsel have traditionally seen in the admission of complaint evidence. Instead of seeing the complaint as being something to be feared, counsel perceived it as being something to be exploited."

14 It appears that the note written by the complainant was at first written more for her own purposes than for the purpose of informing others. Indeed, when it was put to the complainant in cross-examination that she never meant for the note to be discovered, she agreed. On the other hand, the note contained the clear statement that she and "the man" had "had sex 6 times". This constituted an account by her of having been sexually interfered with six times and in that sense, a complaint. In addition, the complainant spoke in the note of not having so far told anyone, being undecided as to whom to first speak about it.

15 Evidence of complaint is not limited in sexual cases to cases where consent is in issue: R v Osborne [1905] 1 KB 551. In essence, the complainant's written account of having had sex six times with "a man" (who was clearly the appellant) came to constitute a complaint in that respect by reason of the fact that her father found the note and then questioned her whether it was true. In answer to that question she confirmed that it was. Leaving aside the issue of whether the information was elicited from the complainant by her father by way of a leading question, the evidence was properly categorised as evidence of complaint, because once the complainant had confirmed to her father the accuracy of what she had written, she was in fact making complaint that she had been sexually penetrated six times by the appellant. The complaint was made within a month of the sexual acts having commenced and it was conceded that it qualified as a complaint made at the first reasonable opportunity.

16 No attention was given at the trial to the proper classification of the evidence until the learned trial Judge indicated to counsel how he intended to direct the jury on a range of matters. His Honour questioned whether the "usual recent complaint direction" should be given. In response, counsel for the defence said:

"TROWELL, MR: It's not a recent complaint because it's not spontaneous. It's obtained under questioning. It doesn't fall within the definition of a recent complaint. It may fit within the time frame but doesn't fit within the spontaneity requirement. On that basis they can't use it to assess credit. It's just not a recent complaint."

17 There followed considerable argument in relation to the matter, at the end of which counsel for the defence opposed any complaint direction, primarily on the basis that the evidence did not constitute a voluntary complaint. It was put that it had been "dragged from her by her father and to an extent unwillingly so". Counsel for the defence did not, however, indicate on what basis the evidence was admissible. It was too late to contend that it was inadmissible and indeed counsel for the defence had never sought to argue that the evidence was inadmissible. To the contrary, he had introduced the evidence and relied upon it.

18 It was thus incumbent upon the trial Judge to decide how the evidence should be treated and how the jury was to be directed in relation to it. In this respect his Honour categorised the evidence as evidence of recent complaint but only in relation to counts five and six on the indictment. His Honour said:

"... there was no complaint about these events that took place on 1 August 1999 at Carnegie or about the events at Geraldton on 5 August or about the events at the blowholes on 10 August or about the events on 14 August at Pardoo.

The first we hear of any suggestion of complaint is after the allegation in count 6 on 23 August at Broome when the next day there is a revelation discovered by the father when he discovers exhibit 1, the note. Well, can I just point out to you that our law [has] something very specific to say about this, about any suggestion about lack of complaint. The absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false and there may be good reasons why a victim of an offence such as that alleged here may hesitate in making or may refrain from making a complaint of that offence. That is the law."

19 His Honour's directions in relation to absence of complaint or delay in complaining were in accordance with the provisions of s 36BD of the Evidence Act 1906 and properly given. His Honour then went on to explain to the jury how they could use evidence of complaint:

"So you can't use the evidence of complaint in any way to assist you in your deliberations to arrive at a conclusion adverse to the accused based on the complaint because ordinarily and in the case of a recent complaint, which I hold counts 5 and 6 to be recent in time to the complaint that's made on 24 August 1999, in respect of those two counts you can adopt a process - you can look at those complaints in this light. The evidence is admitted merely to go to a factor that you might consider in assessing Kayo's credibility. Bear in mind that in relation to the first four counts you cannot do that. That is just part of the narrative.

In relation to counts 5 and 6 you may use this evidence of complaint, this what I regard as recent complaint, to assist you if you choose in assessing Kayo's credibility because it is thought and our common experience is that unwanted sexual advances - or illegal sexual advances is what I should say in this case, I beg your pardon, which are carried into fruition might generally be thought to be the subject of a complaint and so it is only admitted because it might show, it might be used by a jury to show consistency and hence assist in the assessment of credibility, but no matter what, and please listen to this very carefully, the complaint is never evidence of the events themselves having happened."

The directions given in relation to the basis upon which evidence of complaint could properly be used by the jury were in accordance with authority.

20 At the conclusion of his Honour's charge to the jury he gave an explanation to counsel of the basis upon which he had decided to direct the jury as he did:

"NISBET DCJ: --- because having given anxious consideration to your arguments I relied upon this passage in Cross:

If the circumstances indicate that but for the questioning there probably would have been no voluntary complaint the answer is inadmissible. If the question merely anticipates a statement which the complainant was about to make it is not rendered inadmissible by the fact that the questioner happens to speak first.

And in the circumstances and having regard to the broad discretion that is said to rest with trial judges on this issue I reasoned as follows: that the exhibit 1 clearly indicated a desire by this 13-year-old girl to tell somebody. She didn't know who to tell, the exhibit says.

Then her father finds the note and says to her, 'Is this true?' and it all comes out. So that's why I regarded the last two as recent complaint and gave the jury the direction I did."

Why the learned Judge took it upon himself to decide that the evidence did not constitute a complaint made at the first reasonable opportunity in relation to counts 1 to 4 is unclear. Counsel for the defence had not submitted this to be so. However, the directions given on the limited purpose for which the evidence of complaint could be used were clearly well understood by the jury, as they returned with a question after a little less than an hour's deliberation. The question went to the issue of why the evidence could only be used in relation to counts 5 and 6. It was as follows:

"Please explain why we cannot use the complaint in counts 1 to 4, but we can in count 5 to 6. We are confused re what the complaint entails and how it is relevant to count 5 and 6, but not in counts 1 to 4."

A further direction was then given as to the use to which the evidence could be put, and an explanation given as to why it was limited to the last two counts:

"Why can you use it and how can you use it in relation to those two counts on the indictment, 5 and 6, in which I've ruled that it's recent? You can only use it in this way. Firstly, remember as with all complaint evidence it is not evidence of the truth. You may simply use [it] if you choose to use it. It's a matter for you, as a matter which might indicate consistency in conduct. That is to say, it may be used to assist you in determining Kayo's credit as a witness - that is, is she reliable because she made a complaint?

Human experience is that if something of a sexual nature happens that is untoward you might in some circumstances expect a complaint. That is why you hear it, simply because you can then get a better picture, if you like that assists you to form an impression fo the reliability, the credibility, of the complainant. In relation to counts 1 to 4, it was said that there was a delay in making this complaint and I told you that there was - obviously if it's not recent then it's a delayed complaint ..."

21 The single ground of appeal upon which the appellant relies is in the following terms:

"The learned trial Judge erred in directing the Jury that they could treat the verbal confrontation between the complainant and her father as a recent complaint of sexual abuse in respect of Counts 5 and 6 and therefore use it to bolster her creditability in circumstances where at law it could not be classified as a recent complaint nor be used for the purpose."

22 Evidence of complaint is only admissible because of the exception in law that complaints may be proved as evidence-in-chief in criminal proceedings for a sexual offence. Although in this case the complainant's writing of the note was for her own purposes and not by way of complaint to any third person about the conduct of the appellant, the content of what she wrote did in fact constitute a complaint. It complained that there had been six occasions upon which the appellant had had sex with her. The Crown case was simply that. It did not involve the question of consent, but only whether the complainant as a girl between the ages of 13 and 16 years had been sexually penetrated as alleged. The content of the note written by the complainant was communicated to her father by reason of the fact that he found the note and then asked his daughter whether it was true. In response she said that it was. To that extent it became a complaint to him.

23 In my view the evidence was properly admitted as evidence of complaint. It was also admissible as going to credit. There was no other evidentiary basis for its admission. Although counsel for the defence argued at the end of the trial hearing that it was wrong for the evidence to be categorised as evidence of complaint because it had not been given voluntarily, the evidence was already in and had never been objected to. Indeed it had been effectively adduced by the defence itself. In my view, counsel for the defence was therefore precluded from contesting the admissability of the evidence as evidence of recent complaint. The trial Judge made it clear to the jury that the evidence could only be used in relation to two counts as evidence of consistency in relation to the evidence of the complainant herself. To this extent the direction was entirely in accordance with Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 per Barwick CJ at 469. It was favourable to the appellant in that it was limited to counts 5 and 6 on the indictment, when in truth it appears that the evidence was admissible in relation to all counts. Counsel for the defence had conceded that there was no problem with it having been made at the first reasonable opportunity.

24 The complaint made by the complainant had an important sequel, because the evidence was that Mr Turner, after having spoken to his daughter, then confronted the appellant and obtained from him what he considered to be an admission of guilt. That evidence was as follows:

"So you have told us that you went to the other side of the vehicle with Mr Roberts to have a chat, to have a word to him, and do you recall what he said to you at that point? --- I recall that I asked him how - I told him that I had found out what had been going on and he said in a quiet voice, 'Sorry'. I said, 'How could you do such a thing to me? She's only 13.' And he said, 'It takes two.' "

This aspect of the evidence was pursued by counsel for the defence:

"I'm not being offensive when I say that but of course you need to rely upon your daughter's word to be satisfied that those things happened, don't you? --- No.

Why not? --- Because when I confronted Clive he said, 'Sorry' and then when I said, 'How could you do it?' he said, 'It takes two'.

Yes? --- To me that was an admission of guilt."

The statement made by the appellant in response to Mr Turner's question was relied upon by the prosecution as an admission of guilt. That evidence could only be adduced by reference to the events that occurred before it. It necessarily brought into evidence the circumstances in which Mr Turner had found the note and confronted his daughter about it.

25 I am of the view that the evidence was clearly admissible as evidence of complaint in a sexual case and that it met the criteria for admissibility. It was conceded to have been made at the first reasonable opportunity and was clearly made spontaneously when the complainant was asked by her father whether it was true. Although in R v Osborne (supra), Ridley J (at 556) suggested that questions "of a suggestive or leading character" would have the effect and would render inadmissible evidence of a complaint, his Honour pointed out that in each case the decision on the character of the question put, as well as other circumstances, such as the relationship of the questioner to the complainant, must be left to the discretion of the presiding Judge. The passage which is so often quoted is in the following terms:

"It appears to us that the mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect and will render it inadmissible ... In each case the decision on the character of the question put, as well as other circumstances, such as the relationship of the questioner to the complaint, must be left to the discretion of the presiding Judge. If the circumstances indicate that, but for the questioning, there probably would have been no voluntary complaint the answer is inadmissible. If the question merely anticipates a statement which the complainant was about to make, it is not rendered inadmissible by the fact that the questioner happens to speak first."

"It applies only where there is a complaint not elicited by questions of a leading and inducing or intimidating character, and only when it is made at the first opportunity after the offence which reasonably offers itself."

27 In R v Freeman [1980] VicRp 1; [1980] VR 1, Starke, McInerney and Murphy JJ pointed out the shortcomings of Ridley J's enunciation of the principle upon which evidence of complaint will be received in criminal cases. Their Honours reviewed a number of cases and concluded that any attempt to formulate an exhaustive rule was bound to fail. They said (at 4 - 5):

"But the attempt, in R v Osborne, supra, to cover the field by enumerating the circumstances in which a complaint is properly admissible to prove consistency, is also, in our view, open to criticism, and indeed has not escaped criticism.

In R v McNeill [1907] VicLawRp 51; (1907) VLR 265; 13 ALR 99, the Full Court, on a Crown case reserved, quashed a conviction for indecent assault upon a girl aged ten years because evidence had been admitted of answers given by the girl to questions put to her by her mother upon the mother's having observed bloodstains on the girl's chemise. The Full Court was not satisfied that the girl's statement was shown to have been made upon the first reasonable opportunity after the assault. Madden, CJ, delivering the judgment of the Court, went on to say [1907] VLR at pp 268-9: 'Another matter has been debated here, based upon a dictum in R v Osborne, that such a statement is not admissible if it appears that but for the question the child or woman would never have made the statement in question. It appears to me that that observation in that case is merely a dictum, quite unnecessary to the decision in that case, and therefore not binding upon this Court. We say nothing about this matter, because it is unnecessary to do so in this case. Speaking for myself, I would like to consider the matter very carefully before coming to the conclusion that the dictum in that case is correct. We decide this case on the other ground - namely, that there is nothing to show that this was a statement made at the first reasonable opportunity after the assault.'

Reservations on the same point were also expressed by the Court of Criminal Appeal in R v Norcott [1917] 1 KB 347 at p 351, where the Court (Viscount Reading, LCJ, Darling and Atkin JJ) said: 'If that sentence is taken by itself, as we do not think it was ever intended to be, it goes too far. It must be read with the immediately preceding sentences and must be qualified by them.'

In the same case, at p 350, the Court stated what we believe to be the basic requirement: 'The Court in R v Osborne, supra, meant to guard against admission in evidence of statements which have been put into the mouth of the prosecutrix by questions of a leading or suggestive character. The Court is concerned to see that in the present case the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished statement of what happened. That she may have been persuaded to tell her unassisted and unvarnished story is no reason why the evidence of her having made the statement should be rejected.'

The decision in R v Northcott may, perhaps, be regarded as a strong one, in that the evidence showed that the complaint was ultimately made only after a woman (old enough to be the prosecutrix's mother) who had observed the prosecutrix to have been crying, had asked her what was the matter (which the prosecutrix would not tell her), had urged the prosecutrix to tell and had finally taken hold of her bicycle and said to the prosecutrix, 'I won't let you go until you tell me'. The Court saw nothing in these circumstances which would cause the complaint to be inadmissible. Cf however, R v Adams and Ross, [1965] Qd R 255.

Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another, and the attempt which appears to have been made in Osborne's Case to provide guidance to a trial Judge of a rule of thumb nature when deciding whether evidence of a complaint should or should not be admitted, may in some case prove misleading.

The ultimate question must always be does the 'complaint', in the circumstances in which it was uttered, tend to buttress the prosecutrix's credit as a witness.

This, of course, is a jury question, and that question can only arise if the trial Judge has first determined to admit the complaint. That decision involves the formation by the trial Judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proffered evidence, of a judgment whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge."

28 The matter was further clarified in R v Gallagher (1986) 41 SASR 73. King CJ (after referring to the passage in R v Osborne) said (at 77 - 78):

"This statement of the law has undergone some modification. The ground of exclusion that but for the questioning there would probably have been no complaint, did not survive as an independent ground of exclusion: R v McNeill, per Madden CJ at pp 268-269; The King v Norcott. That factor is but one of the factors which must be taken into account in deciding whether the complaint evidence is capable of buttressing the alleged victim's evidence by showing consistency. The requirement in the judgment of Ridley J that the statements, to be admissible, must not be in response to leading questions has also survived only as one factor in the determination of admissibility and its importance in the final decision has varied according to the circumstances. For example a complaint made in response to a suggestive question was held inadmissible in R v Stewart. The same decision was made in Reg v Admans and Ross, although in that case the statement was elicited by 'cross-examination' following an untruthful account and was therefore held to be incapable for demonstrating consistency of account. On the other hand, the Full Court of the Supreme Court of Victoria in Reg v Freeman held admissible a complaint of rape made by a woman who had initially withheld her story, after being asked by a friend: 'Did somebody hit you or have you been raped or something?' I adopt the statement of law appearing in the judgment of the Full Court in Reg v Freeman: [His Honour here referred to the quotation above]"

29 In the light of these authorities, the learned trial Judge was, in my view, entitled in the exercise of his discretion to admit the evidence of complaint for the reasons which his Honour gave. That is, the note itself clearly indicated the desire by the complainant to tell somebody about what had occurred but she did not know whom to tell first. Upon her father finding the note and asking her whether it was true, it "all came out" and was thus evidence of a complaint admissible in the case. The direction then given in relation to the basis upon which the jury could use the evidence of the complaint was, in my view, entirely correct.

30 Although in R v Sakail [1993] 1 Qd R 312 it was held that it was appropriate for the trial Judge to determine whether evidence was capable of constituting a fresh complaint, leaving it to the jury to decide whether in fact it was a fresh complaint, the statements attributed to the complainant in that case were equivocal on the issue of consent, thus requiring the jury to determine whether what was said constituted a complaint. However, different considerations apply in the present case, where the complainant's statement went only to the issue of whether sex had occurred, not whether it was with or without consent. The evidence was evidence of complaint that sexual penetration had taken place and the jury was not required to determine whether it was capable of constituting evidence of complaint.

31 In my view the ground of appeal advanced on behalf of the appellant cannot be made out. This was an appeal as of right and I would dismiss the appeal.