"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."