Area of Law – Sexual Offences
An Article about Complaint witness evidence in criminal sex case
Complaint Evidence – sex matters
In rape cases or other sexual assault cases there is often evidence called of people to who the complaint was first made. Defendants (and juries) can often not work out what weight is given to that evidence or what it really means.
If there are complaint witnesses they are there for the following reason;
“The jury will have to be told that the evidence as to the complaint is relevant only to the consistency of the conduct after the event, and that it does not in any way at all assist to prove the truth of the facts alleged, and that those facts must be proved by other evidence.”
In successfully running rape cases or other sexual assault cases the complaint evidence can often be used against the complainant. Questioning of the witnesses can be show that the complainant did not make the complaint that they are claiming that they did. As sex case so often come down to the credibility of the witnesses it is important to highlight discrepancies such as these.
Following is an extract explaining complaint evidence from a Victorian case.
“The evidence of the content of the complaint has no probative value in relation to any factual matters in contest. Barwick, C.J. summarised the law in Kilby v. The Queen:
“The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence.”
Furthermore, the directions which the learned judge gave in respect of “complaints” fell short of what was required In amplification of that statement, it is perhaps instructive to refer to the oft quoted passage in the judgment of the very experienced Full Court in R. v. Freeman & Ors.  V.R. 1 at 6. Their Honours said:
“If the circumstances in which the alleged complaint was made are such that the learned trial judge concludes that the complaint was not made at the first reasonable opportunity after the event, he would exclude it. If he concludes that it was made in circumstances which remove from it those characteristics which mark it as a complaint, he will exclude it. If he admits it, he will tell the jury that it is admitted only for their consideration as throwing light on the credibility of the prosecutrix insofar as it shows consistency in her account of the event and the kind of reaction ordinarily to be expected of a victim of such an incident as she complained of. He will have to tell the jury that it does not provide evidence of the facts stated in the complaint, and further, that the jury has to determine, firstly, whether the complaint was made, and if so, in what circumstances; and if made, whether the complaint points to the consistency of the evidence of the prosecutrix. The jury will have to consider whether it might go to show that the prosecutrix has reacted in a manner which might be expected of her if she had been subjected to the acts of the nature alleged. The jury will have to be told that the evidence as to the complaint is relevant only to the consistency of the conduct after the event, and that it does not in any way at all assist to prove the truth of the facts alleged, and that those facts must be proved by other evidence. If the jury find that the alleged complaint was made, they may take the making and contents of that complaint into account as one of the circumstances to be considered when assessing the reliability of the prosecutrix.”
That statement remains good law in this State and is not rendered any the less applicable by the provisions of s.61(1)(b) of the Crimes Act which requires a trial judge to inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it. As this Court said in Knigge’s case:
“The reason underlying the provision in s.61(1)(b) of the Crimes Act requiring the judge’s direction is to nullify the impact of a statement made attacking the credibility of a complainant on the basis of a failure to make a spontaneous or recent complaint. It can provide no legitimate basis … for the admission of a statement of complaint which does not meet the criteria of a ‘recent complaint’ for the purposes of positively bolstering the credit of the complainant.”
R V MAG VSCA
Furthermore, the directions, as it seems to me, fell short of what the law, as expressed in Freeman’s case, required. On the assumption that the complaints were “recent”, her Honour told the jury correctly that the evidence could only be used by them as throwing light on the credibility of the complainant insofar as it showed consistency in the complainant’s account of the relevant events. However, her Honour’s directions did not leave it to the jury to determine whether the complaint in fact had been made, and if so, in what circumstances; nor did she tell the jury that the complaint, if made, could not provide evidence of the facts stated; nor was it available to be used as proving the truth of the facts alleged, which facts had to be proved by other evidence.
There are other aspects of the directions which her Honour gave to the jury in respect of this matter of “recent complaint”, which warrant attention. In the first place, the directions included a comment about C’s “complaint” to her school counsellor. Her Honour told the jury, correctly, that the evidence of that school counsellor could not possibly amount in law to a “recent complaint”. From this distance, it is difficult to understand what the relevance of the evidence of the school counsellor was. It was undoubtedly prejudicial, but, again, it appears not to have been objected to.