Court of Appeal (Vic)|2013-03-01|Before: Maxwell P, Redlich JA

Stark v The Queen [2013] VSCA 34 (1 March 2013)

CRIMINAL LAW - Appeal - Conviction - Incest, sexual penetration of child under 16, threats to kill - Evidence - Admissibility - Prior representations - Complaint - Evidence of one complaint relied on to prove asserted fact - Evidence of other complaints relied on only to support complainant's credibility - Whether evidence 'sufficiently probative' - Alleged lie by appellant when giving evidence - Whether open to be viewed as such - No error - Appeal dismissed - (Vic) , (Vic) s 41D, (Vic)

EVIDENCE - Admissibility - Prior representations - Whether admissible to prove truth of asserted fact - Criminal proceeding involving sexual offences - Complainant under 18 - Whether admissibility governed by Evidence Act 2008 (Vic) s 66A or by Criminal Procedure Act 2009 (Vic) s 377 - Latter provision extends scope of former - Latter provision applicable - Whether evidence 'sufficiently probative' - No error in admitting evidence.

1 After a trial before judge and jury in the County Court, the appellant, Bryan Stark,[1] was convicted of a number of sexual and other offences and was sentenced as set out in the following table:

Sexual penetration of a child under the age of 16[4]

Indecent act with child under the age of 16[5]

2 Mr Stark now appeals, by leave, against these convictions. For reasons which follow, I would dismiss the appeal.

3 The first ground raises a point of general importance concerning the admissibility, in a trial of sexual assault charges, of evidence of a complaint made by a child victim. Specifically, it raises the question of the relationship between s 66 of the Evidence Act 2008 (Vic) (the 'Evidence Act') and s 377 of the Criminal Procedure Act 2009 (Vic) (the 'Criminal Procedure Act').

4 Both sections make admissible, as an exception to the hearsay rule, evidence of a previous representation which is given either by the maker of the representation or by a person 'who saw, heard or otherwise perceived the representation being made'.[6] The hearsay rule is excluded if the maker of the representation 'has been or is to be called to give evidence'.[7]

5 Section 66 applies to all criminal proceedings. The evidence will be admissible to prove the truth of 'the asserted fact' - that is, the fact or matter the subject of the previous representation - if the occurrence of that fact was 'fresh in the memory' of the maker of the representation at the time it was made.[8]

6 The application of s 377, by contrast, is confined to criminal proceedings:

(a) which relate (wholly or partly) to a charge for a sexual offence; and

(b) in which a complainant under the age of 18 years, who made the previous representation, has been or is to be called to give evidence.

The evidence will be admissible to prove the truth of the asserted fact (and/or to support the complainant's credibility) if the trial judge is satisfied that the evidence is 'sufficiently probative'.[9]

7 The criminal proceeding which gives rise to the present appeal falls within the scope of s 377. The complainant ('J') was under 18, and the proceeding related partly to charges for sexual offences. In my view, for reasons set out below, that section governed the question of admissibility of the relevant evidence in this trial.

8 J was born in December 1994. Towards the end of 2000, when J was aged 6, Mr Stark commenced a relationship with J's mother ('MJ').

9 There were two incidents which gave rise to the charges. The first occurred between November 2003 and December 2004, when J was 9. It was around the time that J's halfsister (the child of MJ and Mr Stark) was born. The second incident occurred after Mr Stark had married MJ, when J was 10-and-a-half or 11 years old.

10 J gave two VATE interviews, and gave evidence via special hearing. Her evidence was that the first incident occurred one evening after she had gone to bed. She heard Mr Stark walking around. She described him as having been drunk. He came into her room. He stroked her hair, kissed her forehead and told her to wake up. Mr Stark then lay on top of J, pulled down her pants and underpants and placed his penis inside her vagina. He then said that if she told anyone or thought of telling anyone, he would strap her to a chair and make her watch as he killed her mother. He would then kill her. She did not tell anyone. This gave rise to charges 1 (incest), 2 and 3 (make threat to kill).

11 J gave evidence that when she awoke the following morning, there was blood on her sheets. She told her mother that she had had a blood nose. MJ gave evidence that she had been asked by J to wash her sheets. She said that J had made her bed, which was very unusual, and that when she (MJ) pulled the doona back, there was blood in the middle of the bed. At that point, J told her that she had had a blood nose.

12 The second incident took place as follows. Mr Stark went into J's bedroom. He said 'You couldn't keep me away, could you, you little cunt?'. He then removed her underwear and put his fingers inside her vagina (charge 4 - sexual penetration of a child under the age of 16). Mr Stark grabbed J's hand and put it near his underpants, under his tracksuit pants (charge 5 - indecent act with a child under the age of 16). Mr Stark then placed his penis inside her vagina (charge 6 - sexual penetration of a child under the age of 16). Mr Stark called J names like 'cunt' and 'slut'. Mr Stark again threatened to kill J and her mother if J told anyone (charges 7 and 8 - threat to kill).

13 Mr Stark gave evidence. He denied that either incident had taken place. He said that, because of his weight, he was unable to have sex with MJ in the missionary position. In evidenceinchief, he was asked whether he had heard of an occasion where there was blood on the sheets. He replied, '[J] did used to get blood noses. Yes'. Later, in cross-examination, Mr Stark said that he had never been made aware of an incident where there was blood on J's sheets. (These exchanges give rise to ground 2.)

Ground 1: admissibility of evidence of complainant's previous representations

The trial judge erred in law in admitting evidence of previous representations made by the complainant to [A], [B] and [P] which could be used both as evidence of the truth of the contents of the representation (in the case of [B]) and as being consistent with the complainant's account and therefore supporting her credit (in respect of all three persons).

15 As mentioned earlier, this ground concerns what has traditionally been described as 'complaint evidence', that is, evidence of a statement made by a victim of sexual assault to a third party referring to, or describing, or reporting, the alleged assault. The ruling to which the ground refers was, of course, made before the evidence was led but it is necessary, before considering the correctness of the ruling, to summarise the relevant evidence as it was led.

16 The relevant sequence of events may be summarised as follows. J moved out of the family home in early 2006. MJ separated from Mr Stark in July 2006. J did not tell anyone about the incidents until the end of 2009, when she separately told her friends A and B about the first incident. In March 2010, J told a psychologist ('P') that her mother's husband had assaulted her.

17 Asked in the course of the videotaped interview whether she had ever told anyone about what Mr Stark had done to her, J replied that she had told three of her closest friends. The first was A. J had spoken to him on New Year's Eve 2009. According to J:

[W]e were talking about [Mr Stark] 'cause he's met [him], and he goes to me, no, he said something, and I'm, like, he sexually abused me when I was nine, and then, yeah, he was just shocked, he couldn't believe it ...

J's evidence of having spoken to A was the only evidence of that complaint, as A's mother would not permit him to make a statement to police.

18 B gave evidence that J had told him she had been raped by her sister's father when she was nine. The conversation had taken place during the 2009-10 summer holidays. B and J had been drinking. Under crossexamination, B said that he had not been affected by the alcohol and that it did not appear to have affected J.

19 Asked how he had responded to J's disclosure, B said:

There wasn't much I could say really. I didn't know what to say because it was a place I hadn't been put in before. ... I asked her if she'd spoken to anyone about it, because it was the sort of thing that I knew she needed to speak to more than me about. I wasn't going to court for her.

hadn't told anyone yet and that she was going to, but she wanted to, but ...

Shortly after this, B said, J started to cry and 'got really upset'. At that point B

just stopped saying anything because it just felt out of place. ... [I] just sat there and held her and told her that she needed to speak to people about it when she felt better about it ...

20 J gave evidence that she told B 'that I had been sexually assaulted by my mum's husband'. In cross-examination, J was asked about B's statement (subsequently confirmed in evidence) that J had told him that he was the first person she had spoken to about the sexual abuse. J confirmed that B was not the first (the earlier disclosure having been made to A) but doubted that she had said any such thing to B. (As will appear, these discrepancies are relied on in support of ground 1.[10])

21 J gave evidence in the course of the special hearing that in February 2010, she was referred to P following severe panic attacks. The first session was attended by J and her mother and father, the second by J alone. On the second occasion, she said, she told P that she had 'just been assaulted by [her] mum's husband'. (As the judge made clear in her charge to the jury, it was common ground at the trial that J had told P of a sexual assault.)

22 The prosecutor told the judge that he relied on the evidence of the statements made to A and P for the purpose only of supporting J's credit. (Evidence of those statements was to be given by J alone.) Evidence of the statement made to B (which was to be given both by J and by B himself) was intended to be used to establish the fact asserted by J in the statement - that Mr Stark had raped her - as well as to bolster her credit.

23 The judge, in a careful ruling, gave reasons for her conclusion that the relevant evidence was admissible for the purposes respectively identified by the prosecution. Before setting out the relevant parts of the ruling, it is necessary to set out the terms of s 66 of the Evidence Act and s 377 of the Criminal Procedure Act. The relevant part of s 66 is in these terms:

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by -

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made -

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including -

(a) the nature of the event concerned; and

(b) the age and health of the person; and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Note

Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606.

24 Section 377 is in these terms:

(1) In this section -

asserted fact has the same meaning as in the Evidence Act 2008;

hearsay rule has the same meaning as in the Evidence Act 2008;

previous representation has the same meaning as in the Evidence Act 2008.

(2) This section applies in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence if a complainant under the age of 18 years who made a previous representation is available to give evidence about an asserted fact or the complainant's credibility is relevant.

(3) Subject to subsection (4), if a complainant has been or is to be called to give evidence, the hearsay rule does not apply to evidence to support an asserted fact or the complainant's credibility that is given by -

(a) the complainant; or

(b) a person who saw, heard or otherwise perceived the representation being made.

(4) Subsection (3) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.

(5) A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(6) Evidence of the kind referred to in subsection (3) is admissible to support the credibility of the complainant as a witness.

(7) Nothing in this section takes away from or limits any discretion a court has to exclude evidence.

25 In her ruling, the trial judge first addressed the question of which provision was applicable, concluding as follows:

In this case, given the age of the complainant, s 377 of the Criminal Procedure Act applies and most likely overrides s 66 of the Uniform Evidence Act. However, I have found no authority in relation to this. Thus, in the circumstances, with an abundance of caution, I will apply both.

Her Honour then summarised her conclusions in these terms:

I rule that the prosecution is entitled to lead the evidence as I find it is admissible pursuant to s 377 of the Criminal Procedure Act as it is relevant to a fact in issue and sufficiently probative having regard to the nature and content of each of the representations and the circumstances in which each was made, and I consider that the evidence is relevant applying the test in s 55 and the criterion of the evidence being fresh in the memory of the person is made out given the matters in s 66(2A).

The criticisms made of the evidence which are relied on by [defence counsel] are the time period, the discrepancies between the complainant's evidence and [B] and the delay in complaining. [These] are matters that are quite properly put, or can be put before a jury but, nevertheless, I consider that the evidence is highly probative for the purpose it is being led taking into account that, other than [B], it is a matter in relation to the credibility of the complainant.

27 Her Honour then addressed specifically the question raised by s 66; namely, whether at the time the statements were made, the occurrence of the asserted fact - that is, the sexual assault - was 'fresh in the memory' of the complainant. Her Honour said:

I accept on the Crown case at its highest, that it is fresh in the memory of the complainant. In this case it is significant that at the time the offences took place she was aged between nine and 11 years and at the time she made the disclosures or the complaints she is 15 years of age and ... I consider I can take judicial knowledge that it is a significant difference in the maturity of a child during that period and I take into account her reticence in not complaining earlier, notwithstanding there were opportunities and she was with members of her family.

I also take into account just a factual matter when looking at the criticisms made is that she did not complain to the psychologist in the presence of her parents. It was when she was not with her parents and maybe that is a matter of embarrassment. She complained when she was not in the presence of her parents to a person in authority. I also do not accept the submission made by [defence counsel] that looking at the authorities ...,[11] the nature of the event concerned was not sufficiently unusual.

I consider that for a child aged between nine and 11 to be sexually penetrated by the person in authority in the household, her stepfather, on two occasions is sufficiently unusual, that I could accept for the purpose of this submission that it would be sufficiently traumatising for her to remember. I also take into account that on the evidence the Crown has at this stage, that the representations she made to each of those who are the subject of this ruling are consistent with her account of what occurred generally.

28 Section 66 was first enacted in 1995, by the Commonwealth and New South Wales Parliaments respectively.[12] In Graham v The Queen,[13] the High Court was required to consider whether, when a complaint of sexual assault was made six years after the event, the 'asserted fact' was 'fresh in the memory' of the complainant, as required by s 66(2). The Court concluded that it was not. In their joint judgment, Gaudron, Gummow and Hayne JJ said:

The word 'fresh' in its context in s 66, means 'recent' or 'immediate'. It may also carry with it the connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time') but the core of the meaning intended, is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation. Although questions of fact and degree may arise the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.[14]

Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the 'quality' of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature.[15]

29 In response to that decision, a new sub-s (2A) was inserted. As explained by Whealy J in the New South Wales Court of Criminal Appeal case of X Y, this change accorded with a recommendation of the Australian Law Reform Commission, to the effect that s 66 should be amended to make clear that the determination of whether the asserted fact was 'fresh in the memory' did not depend - solely or predominantly - on lapse of time.[16] A range of factors had to be considered. Importantly, as his Honour pointed out, the Court applying s 66 must now take into account 'the nature of the event concerned'.[17]

30 That amendment was made in New South Wales by the Evidence Amendment Act 2007 (NSW), which commenced on 1 January 2009. By the time Victoria adopted the Uniform Evidence Act - in 2008 - the Act included s 66(2A). It came into force on 1 January 2010.[18]

31 In the period between the High Court's decision in Graham and the insertion into the Uniform Evidence Act of s 66(2A), the Victorian Law Reform Commission (the 'Commission') had published its Final Report on Sexual Offences: Law and Procedure.[19] In a chapter entitled 'Improving the System for Child Complainants', the Commission criticised the restrictiveness of the common law 'recent complaint' principle.[20] In the Commission's view, the requirement that the complaint be recent was 'likely to exclude evidence of most outofcourt statements about sexual assault made by children'.[21] The Commission expressed the view that an outofcourt statement by a child would often be the 'best evidence' of an alleged sexual assault.[22]

compelling reasons to allow the court to admit children's hearsay evidence in sexual assault cases, provided the jury is made aware of the factors that may affect the reliability of this evidence.[23]

For this reason we now propose a specific child hearsay exception, limited to the situation where the child is available to give evidence. Childspecific hearsay exceptions for sexual assault cases already exist in most parts of Australia. The recommendation will allow the admission of relevant hearsay statements of a child under the age of 16 in a sexual assault case as evidence of an asserted fact, where the court is of the opinion that the evidence is of sufficient probative value to justify its admission and the child is available to give evidence. The court will be able to exclude the evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant.[24]

33 The Commission's report specifically addressed the question of the relationship between the proposed child-specific provision and s 66, the enactment of which was also recommended:

The recommendation for a childspecific hearsay exception is intended to operate in conjunction with the recommendation in Chapter 4 that Victoria should adopt the Uniform Evidence Act exceptions making the hearsay evidence of both adults and children admissible in specified circumstances. The recommendation is intended to extend the admissibility of children's hearsay evidence beyond the circumstances set out in the Uniform Evidence Act, in cases where the child is available for cross-examination. The Commission believes that it is necessary to introduce a child specific hearsay exception, in addition to the exceptions in the Uniform Evidence Act, because the latter provisions will often only allow the admission of hearsay evidence where the statement is made shortly after the assault is alleged to have occurred. As we have discussed above, children typically delay telling others that they have been sexually assaulted.[25]

34 The Commission's recommendation was implemented in 2006, by the insertion into the former Evidence Act 1958 (Vic) of a new s 41D,[26] which provided as follows:

41D Evidence of previous representations made by child complainants

(1) If, in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence, a child complainant who is under 17 years of age and who has made a previous representation is available to give evidence -

(a) about the existence of a fact of which he or she had personal knowledge and that he or she intended to assert by the representation; or

(b) if the child complainant's credibility is relevant, to support his or her credibility -

the hearsay rule, subject to subsection (2), does not apply to evidence of the representation that is given by -

(c) the child complainant; or

(d) a person who saw, heard or otherwise perceived the representation being made.

(2) Subsection (1) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.

(3) A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

(4) Evidence of the kind referred to in subsection (1) is admissible for either or both of the following purposes -

(a) to prove the truth of the fact contained in the representation; or

(b) to support the credibility of the child complainant as a witness.

(5) If the court receives evidence of the kind referred to in subsection (1), the court must warn the jury that evidence of that kind may not be as reliable as original evidence.

(6) Nothing in this section takes away from, or limits, any discretion a court has to exclude evidence.

35 The Criminal Procedure Act was passed by the Victorian Parliament in February 2009. The operative provisions came into operation on 1 January 2010. Section 377 was one of a number of additional provisions included in the Criminal Procedure Act by amendment, under the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (Vic) passed in November 2009. The explanatory memorandum which accompanied that Bill explained the purpose of s 377 succinctly, as follows:

Section 66 of the Evidence Act 2008 provides an exception to the hearsay rule with respect to a previous representation if the maker is available to give evidence about an asserted fact. Section 66 requires the asserted fact to be fresh in the memory of the [maker].[27] New section 377 extends that exception so that it applies specifically to children. It is not limited to the asserted fact being fresh in the memory of the child.[28]

36 Simultaneously with the coming into force of the Criminal Procedure Act in February 2010, the Department of Justice published a comprehensive Legislative Guide to the Act.[29] The relevant part of the Guide (which the Court provided to counsel in the course of the present appeal hearing) pointed out that s 377 was the successor to s 41D:

This section is based on section 41D of the Evidence Act 1958 with some clarification in structure and language, as well as the removal of subsection (5).[30]

The VLRC, in its Final Report, Sexual Offences: Law and Procedure highlighted that the 'fresh' memory requirement limited the admission of hearsay evidence to statements made shortly after the alleged offence. The VLRC noted that children often reported sexual abuse months or years after the alleged offence. Delays in reporting were more common where the perpetrator was a person the child knew and trusted (Final Report, page 303). In such instances, the 'fresh' memory requirement unfairly disadvantaged child complainants and operated to exclude evidence that could have been crucial in assessing the reliability of the child. Therefore, the VLRC recommended that a childspecific hearsay exception be created (see Recommendations 139-142, page 308). The VLRC recommended that such evidence only be admissible if the court was satisfied that it was sufficiently probative in value and the child was available to give evidence.

The VLRC also recommended that the childspecific hearsay exception operate in conjunction with the hearsay rule in the Uniform Evidence Act. The exception is intended to extend the admissibility of children's evidence beyond the circumstances set out in the Evidence Act 2008.[31]

38 In contrast to s 66(2A), s 377 is not accompanied by a 'Note' explaining its genesis. Had such a note been included, it would doubtless have confirmed what the extrinsic materials make clear - that s 377 (like its predecessor, s 41D) was enacted to give effect to the Commission's 2004 recommendation, that there be a 'childspecific exception' under which the admissibility of the hearsay evidence would not depend upon the 'asserted fact' being fresh in the child's memory.

39 As we have seen, both the Commission's recommendation and the legislative enactment were directed at extending the hearsay exception created by s 66. In short, the provision was intended to establish a different, and less rigorous, test of admissibility in the case of a child complainant. The focus is not on whether the child's memory of the alleged assault is fresh but on whether the evidence 'has sufficient probative value'. Importantly for present purposes, evidence which satisfies s 377 is admissible for the specified purposes, whatever the position might be (or have been) under s 66.

40 The notion that s 377 would 'extend' the hearsay exception would seem to carry with it the assumption that evidence which was not admissible under the (more liberal) test in s 377 would not be likely to have satisfied the requirements of s 66. It is unnecessary to explore whether there is in fact any realistic scope for complaint evidence to be admitted under s 66 in circumstances where it would not be admissible under s 377. There is certainly nothing in the legislative history or in the language of s 377 to suggest that Parliament, in enacting s 377, intended to render s 66 unavailable in a case involving a child complainant. Rather, the provisions were to operate 'in conjunction'. But evidence which would satisfy the 'fresh in the memory' test in s 66 would almost certainly be viewed as 'sufficiently probative' for the purposes of s 377, such that s 66 would have no additional work to do.

41 The question, accordingly, is whether the evidence of the representations made by J to A, B and P respectively was admissible under s 377, as her Honour found it was. It will be recalled that the exception to the hearsay rule created by s 377(3) did not apply unless her Honour was satisfied

that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.[32]

42 The submission for the appellant was that her Honour should not have been so satisfied, having regard to the following matters:

(a) the 'very lengthy delay' between the alleged offences and the making of the various representations. Five or six years had elapsed between the time of the first incident and J's complaint about it to A, B and P; and between three years eight months and five years had elapsed between the second incident and J's complaint to P. J had stated in her first taperecorded interview that she was 'pretty blurry about the whole thing';

(b) the 'significant discrepancies' between the evidence given by J and B respectively about what passed between them, in particular about 'what was said, the circumstances of it, when it occurred and if [B] was told by [J] that he was the first person she told'; and

(c) the fact that A was not called to give evidence about J's complaints to him. (As already noted, P was not called either.)

43 The submission relied, in addition, on features of the present case which were said to distinguish it from X Y and Miller. In each of those cases, it was said, the 'unusual nature of the allegation made' had been a significant feature in determining that the events spoken of were 'fresh in the memory' for the purposes of s 66(2), notwithstanding a significant lapse of time. In the present case, so it was contended:

[T]he time delay is so great and the circumstances of the offending do not have any unusual features ... in order to be considered 'fresh in the memory'...

44 The submission also relied on evidence given by J at the special hearing that by 2008, after she had moved away from the family home and was living in Queensland with her maternal grandparents, any fears she had had of Mr Stark were 'long gone'. Further, on 19 June 2007, J had attended the Sex Offences and Child Abuse Unit at the local police station, at which time - so it was contended - she could have complained to police about the offending.

45 As s 377 is the successor - and is relevantly identical - to s 41D of the Evidence Act 1958 (Vic), decisions relating to the earlier provision continue to be applicable. The appellant relies on Watson v The Queen,[33] in which the Court held that the lapse of time between the alleged assault and the making of the complaint was:

one consideration to which a judge should ordinarily have regard for the purposes of determining probative value of a complaint for the purposes of s 41D(2).[34]

In that case, however, it was not delay which detracted significantly from the probative value of the relevant complaint but the fact that the terms of the complaint

so illaccorded with the offences alleged, or alternatively were so imprecise, that they could not logically be regarded as probative of the offences.[35]

46 Reliance is also placed on the case of W S J, where the Court rejected a submission that the lapse of time between the alleged event and the making of the representations 'was such as to deny the representations the necessary probative quality' to satisfy s 41D.[36] Redlich JA (with whom Buchanan and Harper JJA agreed) applied Watson, reaffirming that:

the time at which a representation was made was not intended to be excluded from consideration as one of the circumstances in which a representation was made, despite the absence of an express requirement of freshness in s 41D. ... The lapse of time between the alleged offending and the making of the representation will ordinarily be relevant but it is not to be viewed in isolation from other relevant considerations which bear upon the probative value of the representation.[37]

In W S J, it was held, the trial judge was entitled to find that 'there were other aspects of the representations which were capable of giving rise to the necessary degree of probative value'.[38]

47 The substantive question is whether the complaint evidence was 'sufficiently probative'. In my view, it was. But, before I explain why I have come to that conclusion, there are several threshold issues which need to be addressed in relation to s 377. Because both the written and oral submissions in this Court concentrated very largely on s 66 (reflecting the way the argument was conducted before the judge), the Court did not have the benefit of argument on these issues. Accordingly, the views expressed must be regarded as tentative only.

48 The first threshold issue concerns the meaning to be given to the phrase 'sufficiently probative'. It is notable that s 377 does not use the term 'probative value', which is a defined term in the Evidence Act and which, because of its central importance in the key provisions of that Act, has been the subject of much judicial consideration.

49 The word 'sufficient' invites the question, 'Sufficient for what purpose?'. The answer to that question must presumably be: 'Sufficient for the purpose for which the evidence is sought to be admitted'. Unlike s 66, s 377 makes complaint evidence admissible for one or other (or both) of two purposes, namely:

'to support an asserted fact'; and
'to support ... the complainant's credibility'.[39]

This raises the possibility that evidence might be 'sufficiently probative' to be admissible to support the complainant's credibility, but not be 'sufficiently probative' to be admissible to establish the truth of the fact asserted in the complaint. I return to this question below.

50 The decision of this Court in P R W v The Queen[40] provides valuable guidance as to the content to be given to the phrase 'sufficiently probative'. The Court there upheld the trial judge's conclusion that evidence of a previous representation made by the child complainant - of uncharged acts of digital penetration - was 'sufficiently probative' within the meaning of the then-applicable s 41D(2). (The judge had ruled that the evidence was admissible for both statutory purposes.) Buchanan JA (with whom Whelan and Robson AJJA agreed) said:

The principal drawback from which hearsay evidence generally suffers stems from the lack of means of testing the trustworthiness of the nature of the statement. That difficulty does not attend evidence admitted pursuant to s 41D, for the maker of the hearsay statement will be available to give evidence. In those circumstances, the hearsay statement confers upon the complainant the advantage of being able to rely upon self-serving evidence. I am inclined to think that the evidence will be sufficiently probative if it discloses an identifiable, specific representation, which, in the circumstances of the particular case, does add weight to the complainant's evidence by constituting a representation that was likely to be made if the fact contained in the representation had occurred.

In the present case, the complaints by the complainant to her mother were specific and were made at the time the applicant was alleged to have digitally penetrated the complainant's vagina. Although the complainant denied making any complaint of soreness, the evidence was consistent with the complainant's evidence that she experienced pain. The existence of other possible explanations for soreness was a matter to be considered by the jury but it was not, I think, fatal to the inference that the soreness was caused by the applicant's actions. The acts to which the evidence related were uncharged acts, not the offences charged, but in my view that did not affect the probative value of the evidence, for the uncharged acts, which constituted a stage in the development of the offending, were a significant part of the Crown case in that they provided a context to the evidence of the offences.

Accordingly, in my opinion, whether this Court is to determine the admissibility of the evidence for itself or is to apply the principles set out in House v The King, the trial judge's determination was correct. The statement said to have been made by the complainant was consistent with a fact to be proved and its making was so connected to that fact that, when taken in conjunction with other evidence in the case, it bore on the probability of that fact having occurred.[41]

51 The second threshold question concerns the proper role of the judge in determining whether the evidence is 'sufficiently probative'. In Dupas v The Queen,[42] this Court concluded that, in determining the 'probative value' of evidence for the purposes of s 137 of the Evidence Act, the trial judge had to consider the reliability of the evidence and the weight which the jury might reasonably attach to it. The same analysis would apply, in my view, to the question raised by s 377, as to whether evidence is 'sufficiently probative'.

52 The third threshold question concerns the nature of the appeal from a decision to admit evidence under s 377. In McCartney v The Queen,[43] this Court concluded that, on appeal from a decision made under s 137 of the Evidence Act, the appeal court could, and should, decide for itself whether probative value is outweighed by the danger of unfair prejudice to the accused.[44] Under s 377, by contrast, the question of admissibility is made to depend upon the trial judge's state of satisfaction about the probative value of the evidence. On ordinary principles, therefore, a challenge to a decision to admit evidence under s 377 should fail unless it is established that it was not open to the judge to have been so satisfied.[45]

53 As appears from the earlier extract from the judgment of Buchanan JA in P R W,[46] the like question, concerning appellate review of a decision under s 41D, was left open. The question need not be decided in the present appeal either, as I would uphold the judge's decision on either test. In my view, it was well open to the trial judge to reach the relevant state of satisfaction required by s 377(4), and - if it mattered - I would myself have come to the same conclusion.

54 As noted earlier, only the evidence of the statement by J to B was relied on as probative of the truth of the asserted fact. The evidence of the statements made to A and P, on the other hand, went only to support J's credit. As suggested earlier, it may be that the phrase 'sufficiently probative' is responsive to the differential purposes for which s 377 can render such evidence admissible. To be more precise, if the hearsay evidence of the complaint is to be relied on to prove the fact stated, it may be necessary to show a closer connection in content, between the representation (and the asserted fact(s)) and the relevant allegation of sexual assault, than if the evidence went only to credit. In the present case, the trial judge took account of the content of the representation, and of the fact that B also gave evidence of it, in ruling that the representation could be relied upon as establishing the truth of the asserted fact as well as supporting the complainant's credibility.

55 Although J's representation to B was in very short compass - that she had been raped by her stepfather when she was nine - it was quite specific, and it accorded with her principal allegation against the appellant and with the evidence she gave about that incident. Some considerable time had indeed elapsed between the time of the alleged act of incest and J's statements about it, but it was open to the judge, in the circumstances, to view the lapse of time as not materially diminishing the probative value of the evidence. Adopting the test of 'sufficiently probative' enunciated in P R W, the evidence of the complaint disclosed 'an identifiable, specific representation', which added weight to J's evidence 'by constituting a representation that was likely to be made if the fact contained in the representation had occurred'.[47]

56 The asserted fact the subject of the statement to A was that Mr Stark had 'sexually abused' J when she was nine; and of the statement to P, that J had been sexually assaulted by her stepfather. The terms 'sexual abuse' and 'sexual assault' are, of course, entirely nonspecific. Nevertheless, in my view, it was open to her Honour to conclude in each case that the evidence was 'sufficiently probative' when sought to be used in relation to J's credit, for it did show a consistency with the evidence she subsequently gave. It was, in each case, evidence of 'a representation that was likely to be made if the fact contained in the representation occurred'. (I refer below to the undesirability of a jury being required, in a case such as the present, to differentiate between the uses to which various pieces of complaint evidence may properly be put.)

57 On one view, the complainant's consistency of account would not be greatly advanced by the admission of the representations, all of which had been made within the threemonth period immediately preceding the complaint made by J to investigating police and long after the time of the alleged offences. On the other hand, her Honour was entitled to view both the 'nature and content' of J's statements to A, B and P, and the circumstances in which they were made, as reinforcing rather than undermining the probative value of the evidence.

58 I take the phrase 'nature and content' in s 377(4) to be directing attention (at least) to the subject-matter of the complaint - akin to what s 66(2A)(a) identifies as 'the nature of the event concerned'. Selfevidently, it would be a deeply shocking experience for a nine-year-old to have her stepfather penetrate her vagina with his penis. In her interview, J said, '... I was in shock and I was confused and I had no idea what was happening'. J experienced 'a sharp, stabbing pain'. The same can be said of the second incident, when J was 10-and-a-half or 11.

59 Contrary to the appellant's submission, this conclusion does not depend on the presence or absence of 'unusual features' of the alleged offending. It was open to the judge to conclude that J's experience of uninvited sexual intercourse with her stepfather would be, for her, anomalous and inexplicable, confounding her every experience and expectation, and that no other 'unusual' feature was required to give the evidence 'sufficient' probative force. Nor were the differences in recollection between J and B such as to require the trial judge to view the reliability of the evidence which they would respectively give as materially affected.

60 For these reasons, there was no error in her Honour's conclusion that the evidence was admissible under s 377. It follows that s 66 had no role to play in the analysis.

61 If I were wrong about this, I would reach the same conclusion - for essentially the same reasons - in relation to s 66. Allowing that the lapse of time is a relevant consideration, it was open to the trial judge to conclude that, on the occasions when the representations were made, the occurrence of the asserted fact was 'fresh in the memory' of J and that, by force of s 66(2), the hearsay rule did not apply.

62 I would add two final comments. First, it seems to me to be most undesirable for an important provision such as s 377 (and the other evidentiary provisions contained in pt 8.2 of the Criminal Procedure Act) to be located in legislation dealing comprehensively with criminal procedure, rather than in the relatively recent enactment which otherwise deals comprehensively with the law of evidence in this State.

63 Secondly, s 377 (like s 41D before it) seems to me to impose on judge and jury an almost impossible task in a case such as the present, where different pieces of complaint evidence are relied on for different purposes. The judge is expected to explain, and the jury are expected to understand, that one piece of complaint evidence may assist in proving the truth of the fact complained of, while another piece of complaint evidence must not be used for that purpose but can only be used to bolster the credit of the complainant. It is quite unrealistic, in my view, to suppose that the typical conscientious juror will be able to make sense of a distinction which, even for practising lawyers, would present considerable difficulty. (The trial judge herself said, in the course of her ruling, that this distinction might be confusing for the jury.)

The trial judge erred in law in ruling that it was open to the prosecution to argue to the jury that the Applicant had lied in his answer to a question asked of him: 'Before these allegations were made against you in March 2010 had you ever heard of an occasion on which there was blood on [the complainant's] bed sheets?'

65 As noted earlier, when J awoke on the morning after the first incident, she noticed blood on the sheet. At interview, she said, 'There was just patches of blood and a big, like, patch of it'. Asked where the blood was, she replied, 'Where my bum usually is around, yeah, in my bed'.

66 When J's mother gave evidence, she described the event in these terms:

[J] had come into me one morning, telling me that her sheets needed to be washed and I said, oh - I sort of didn't think anything of it at the time. I went into her room and I had actually noticed that her bed had been made, which was very unusual for her to pull her doona up. When I pulled her doona back I noticed there was blood in the middle of her bed and I asked her what had happened and I said, oh - she said, 'I had a blood nose,' and I said, 'Oh, well, how did you get the blood down the middle of your bed? You know, that's, that's odd.' I said, 'I used to get blood noses when I was little but it was always all over my pillow,' and then I just proceeded to take them off her bed and put them in the soaking nappy bucket.

Asked to state where the blood stain was by reference to J's normal sleeping position, J's mother said: 'Probably her backside or her hips.'

67 The ground of appeal refers to the following passage from Mr Stark's evidenceinchief:

COUNSEL: ... Before these allegations were made against you in March 2010 had you ever heard of an occasion where there was blood on [J's] bed sheets?

ACCUSED: [J] did used to get blood noses. Yes.

COUNSEL: Let me ask you about that. How often can you say that she had blood noses?

ACCUSED: Quite often, yes.

COUNSEL: Was there anything untowards pointed out about the position of any blood on bed sheets prior to March 2010?

ACCUSED: No, no.

68 The prosecutor took up the matter in crossexamination, as follows:

PROSECUTOR: Yes. You said [J] used to get blood noses quite a lot?

ACCUSED: Mm'hm, yes.

PROSECUTOR: You gave that answer when you were asked, 'Were there any issues regarding blood on any bed sheets?'.

ACCUSED: Mm'hm.

PROSECUTOR: You said, 'Yes, there was 'cause [J] used to get blood noses quite often'. How often would she get a blood nose?

ACCUSED: Often.

PROSECUTOR: Are we talking once a week, one a month, one a year?

ACCUSED: More, but less than once a month.

PROSECUTOR: Are you saying you actually saw blood on the sheets?

ACCUSED: No.

PROSECUTOR: So how do you know about it?

ACCUSED: I know about it because it was discussed with [MJ].

PROSECUTOR: What did she say?

ACCUSED: [MJ] would tell me that [J] had a blood nose.

PROSECUTOR: What did she say?

ACCUSED: I can't recall exactly what she'd say. She's just tell me that [J] had a blood nose. It was a - - -

PROSECUTOR: She'd tell you that?

ACCUSED: It was a common thing that [J] used to get blood noses.

PROSECUTOR: No mention of a bed sheet in any of that, is there?

ACCUSED: No.

PROSECUTOR: Because, you see, you gave that answer about her getting blood noses in relation to whether there were any issues in your home about blood on bed sheets, didn't you?

ACCUSED: Mm'hm.

PROSECUTOR: Yes?

ACCUSED: Yes.

PROSECUTOR: You would agree with me that these discussions you say you had with your wife, no bed sheet was mentioned, was it?

ACCUSED: No, it wasn't.

69 Before final addresses, the judge asked the prosecutor whether he would be suggesting that Mr Stark had lied during his evidence. The prosecutor submitted that it was open to the jury to find that Mr Stark had lied in the answer he gave in examinationinchief about J having blood noses. Her Honour's first reaction was that the answer was simply nonresponsive, but she ultimately ruled that it was open to the jury to conclude that Mr Stark had lied, and that this was a matter which could go to his credit.

70 On appeal, it was submitted for Mr Stark that it was simply not open to conclude that he had lied:

[T]he prosecutor did not put to him specifically that he had lied. Rather he subtly mis-stated the evidence in crossexamination and used that as the 'building block' for this argument. The applicant's answers in crossexamination included that he can't recall exactly what [MJ] would say about the blood noses of the complainant. Also, there was no crossexamination of the time and circumstances in which the discussions about blood noses took place, eg standing by the washing machine with sheets in hand, or in the morning after ...

71 In my opinion, this submission must be rejected. It is necessary to look closely at the terms of defence counsel's first question on this topic, and at the answer which Mr Stark gave. The question was unambiguous: had Mr Stark ever heard of an occasion where there was blood on J's bed sheets? His reply was:

That was, unmistakably, an affirmative answer to the question. The truthful answer, however, was 'No', as the prosecutor's cross-examination made clear. Although Mr Stark had been told by J's mother about J having blood noses, there had never been any mention of blood on a bed sheet.

72 Significantly, Mr Stark did more than answer the question affirmatively. Not only was he stating that he had 'heard of an occasion' where there was blood on J's sheets, but he purported to provide an explanation for that occurrence, by stating - as J's mother had stated in her own (unchallenged) evidence - that J did have blood noses.

73 In the circumstances, in my view, it was well open to the jury to view Mr Stark's affirmative answer to his counsel's question as a lie, and to view his elaboration of the answer - by reference to J's having had blood noses - as disingenuous. The jury were entitled to conclude that Mr Stark was wanting to suggest that the false explanation which J had given to her mother (for there being blood on the sheets the morning after the first incident) might in fact be the real - innocent - explanation.

74 Nor, in my view, can there be any criticism of the manner in which the prosecutor dealt with this issue. As appears from the second extract set out above, the prosecutor challenged Mr Stark directly on the link he had drawn between J's experience of blood noses and the occasion (of which he claimed to have been aware) on which blood had been found on the sheets. Mr Stark admitted under cross-examination that, although he had heard about J's blood noses, he had never heard mention of bed sheets in that context.

75 The requirements of fairness were fully met, in my view. It was not necessary for the prosecutor to spell out in so many words what his cross-examination was directed at; namely, showing that the link drawn in the first answer was false. I note that defence counsel raised no issue about this at the time, and did not revisit the topic in re-examination of Mr Stark.

77 I agree with Maxwell P that the appeal should be dismissed. Subject to what

follows, I do so for the reasons which his Honour gives.

78 Evidence of asserted facts contained within a representation may be admitted into evidence pursuant to s 377 of the Criminal Procedure Act 2009 (Vic) even though there is an absence of contemporaneity between the time at which the representations are made and the events to which those representations relate. As I said in W S J v The Queen,[48] in dealing with s 41D of the Evidence Act 1958 (Vic), the predecessor to s 377, the time which has elapsed since the asserted facts occurred remains a relevant consideration in determining whether the representation is sufficiently probative. On that question it is for the trial judge in each case to assess whether the nature of the experience as explained by the complainant is such as could explain the recollections reflected in the representation made long after the event. I consider it unhelpful in this regard to examine whether the event complained of contained some 'unusual feature' as the act asserted is ordinarily likely to be an exceptional event so far as the complainant is concerned. However, it is not only the nature of the facts asserted but their detail and the use which the Crown seeks to make of them which will be relevant to the question whether the representation is 'sufficiently probative'.

79 Having regard to these factors in combination, it has not been shown that it was not open to the trial judge to find these representations 'sufficiently probative' so as to justify their admission. These factors may however assume a different and sometimes greater significance when weighing the probative value of the evidence against its unfair prejudice pursuant to s 137 of the Evidence Act. In the present case, the probative value of the asserted facts contained in the three representations made long after the events and all made in the three month period immediately preceding the complaint to investigating police, would have to be balanced against the risk that the jury would give these asserted facts undue weight. In the present appeal there was no challenge to the trial judge's refusal to exclude this evidence under s 137.

80 I do not regard it as necessary to consider whether the trial judge was also correct to admit the evidence under s 66. There is still the unresolved question raised in I S J v The Queen[49] whether the decision in X Y concerning s 66 gives sufficient emphasis to the temporal factor that remains within the concept of 'fresh in the mind'.

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009(Vic)

Stark v The Queen [2013] VSCA 34

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Judgment (129 paragraphs)

Stark v The Queen [2013] VSCA 34 (1 March 2013)

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Legislation Cited (3)

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