The Queen v Kenneth Kirkman [2000] ACTSC 2 (3 February 2000)

Last Updated: 16 October 2000

THE QUEEN v KENNETH KIRKMAN [2000] ACTSC 2 (3 February 2000)

CATCHWORDS

EVIDENCE - complaint - admissibility - accused charged on indictment with committing an act of indecency without consent - Crown case that person had subsequently phoned two friends to complain of the act - whether such evidence is admissible - complaint not part of the res gestae - discussion of s 76C of the ACT Evidence Act - Act prohibits use of complaint evidence in sexual offence proceedings except where evidence is admissible under another rule of law or practice - complaint evidence may therefore be admissible if the Commonwealth Evidence Act renders it admissible - evidence admissible as first hand hearsay under s 66 of the Commonwealth Evidence Act - however evidence cannot be led to prove only credibility - in this case complaint relevant to prove the facts asserted and, under s 66, admissible to prove truth of those facts.

Evidence Act 1971, ss 8(1), 4(a), 76C

Evidence Act 1995 (Cth)

Evidence Act 1995 (NSW)

Evidence Regulations 1995

R v Connolly [1991] 2 Qd 171

R v Parker (1783) 3 Doug KB 242; 99 ER 634 (KB)

R v Virgo (1978) 67 Crim App R 323

R v Lillyman [1896] 2 QB 167

R v Osborne [1905] 1 KB 551

Kilby v R [1973] HCA 30; (1973) 129 CLR 460

R v Wink (1834) 6 CAR & P 397; 172 ER 1293

R v Wallwork (1958) 42 Crim App R 153

R v Bedingfield (1879) 14 Cox CC 341

Mersey Docks Board v Liverpool Gas Co (1875) The Times (3 August 1875)

R v Fowkes, Stephen's Digest of the Law of Evidence (1893) 12^th ed. p 8 library

Ratten v R [1972] AC 378

R v Flannery [1969] VR 586

R v Waye (1984) 14 A Crim R 391 (SACC)

R v Redpath (1962) 46 Cr App R 319

R v Pavlovic and others (21 July 1997; unreported)

R v GJ (3 October 1997; unreported)

R v Hall (Court of Criminal Appeal of New South Wales, 28 February 1997; unreported)

Papakosmas v R [1999] HCA 37; (1999) 164 ALR 548

No. SCC 174 of 1998

Judge: Higgins J

Supreme Court of the ACT

Date: 3 February 2000

IN THE SUPREME COURT OF THE )

) No. SCC 174 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

KENNETH KIRKMAN

RULING ON VOIR DIRE

Judge: Higgins J

Date: 3 February 2000

Place: Canberra

1. In this matter the accused was charged on indictment that he, on the 21^st day of March 1998, committed an act of indecency on Rachel Maree Quis ("RM") without her consent, knowing that she had not consented to the committing of the act of indecency. The accused was the tenant of a townhouse, RM was resident there with his permission. She was a "house mate". They had separate bedrooms.

2. The act alleged was that the accused climbed into bed with RM whilst she was asleep and touched her on the breast and the outside of her vaginal area. She woke up and protested. He desisted. She was clearly angry and upset. He was drunk.

3. It was the Crown case that, shortly after the act complained of, RM rang a close woman friend of hers, complaining of what the accused had done. She then made a similar phone call to a close male friend of hers who lived in Canberra. The terms of each complaint was consistent with her evidence as she was expected to give it in Court. She was apparently angry and upset when she phoned.

4. Mr Corr, for the accused, objected to the proposal to lead this evidence. He contended that it was not admissible. It would contravene s 76C of the Evidence Act 1971 (ACT). That section provides:

"(1) Any rule of law or practice permitting evidence to be admitted in any proceedings in respect of a sexual offence, being evidence relating to the making of a complaint, or the terms of a complaint, by the complainant, is abolished and no such evidence shall be admitted in any prescribed sexual offence proceedings."

5. There was no doubt that these proceedings were "prescribed sexual offence proceedings" and that the proposed evidence was evidence "relating to ... a complaint ...". However, Mr Todd, for the Crown, contended that it fell within the reservation contained in s 76C(2), ie:

"Nothing in this section affects the admissibility of evidence in relation to a complaint, or the terms of a complaint, by the complainant in prescribed sexual offences proceedings where that evidence is otherwise admissible under any other rule of law or practice."

6. That contention relied on two propositions. First, that the Evidence Act 1995 (Cth) rendered such evidence "otherwise admissible" in all circumstances (though it would still be subject to possible discretionary exclusion). Second, in any event, this evidence would fall within the "res gestae" rule, a rule not at variance with the Evidence Act 1995 (Cth). Indeed, that Act, it was submitted, may have rendered it unnecessary to rely on that rule to admit a statement that otherwise would be hearsay.

7. Some foundational matters need to be considered. First, despite the proclamation of the commencement of the Evidence Act 1995, the continued operation of s 76C of the Evidence Act 1971 is preserved (see s 8(1), s 4(a), and Regulation 4, Evidence Regulations 1995).

8. The second matter relates to the reasons for and limits upon the admissibility of complaint evidence in sexual offence proceedings.

Admissibility of complaint evidence

9. In proceedings other than sexual offence proceedings the common law did not permit a party to call evidence that a witness called by that party had made prior statements consistent with his or her current testimony. The reason for that was that such a statement, though it might well tend to support the acceptance of the witness's current testimony, could do so only by supporting, not the occurrence of the factual matters deposed to, but rather the credibility of the witness.

10. The point was succinctly put by Thomas J (Dowsett J concurring) in R v Connolly [1991] 2 Qd 171, 173-4:

"Only facts in issue should be led in chief. A witness may not lift himself [or herself] by his own bootstraps to enhance his credit. If the fact which he states is challenged by the adverse party then that will be made apparent during cross-examination. The witness's reasons for doing the act or his purpose in doing so may then quite properly be asked, because it may help to show whether he should be believed in relation to that particular fact (ie on the question of credit). But it is for the cross-examiner, not the party calling the witness, to raise matters that go to credit. When this happens it may be permissible in re-examination to adduce evidence of the witness's state of mind when he did the act or made the observation or statement. Unfortunately the practice of anticipation of such a challenge and the premature attempted rebuttal of the challenge has become widespread. The present case affords a good example why it should cease."

11. That is an illustration of the old rule that a witness may not self-corroborate nor may other witnesses prove such self-corroboration - R v Parker (1783) 3 Doug KB 242; 99 ER 634 (KB). That is so whether or not the statement is tendered to prove the truth of it or to prove consistency.

12. The evidence might otherwise be admissible, or, at least serve an evidentiary purpose. The use of relatively contemporaneous statements to refresh memory is an obvious example, but the statement itself in that case becomes evidence only if cross-examined upon (see eg R v Virgo (1978) 67 CrAppR 323; but now see ss 32-35 Evidence Act 1995).

13. The rule of law or practice referred to in s 76C(1) was (probably) settled by the decision in R v Lillyman [1896] 2 QB 167. Up until then a complainant in a sexual assault case, if and only if consent was in issue, could tell the jury that he or she had made a recent complaint as to the assault but not the terms of it. In Lillyman, Hawkings J ruled that the terms of the complaint could be given but only to establish:

(170) "...consistency of the conduct of the prosecutrix with the story told by her in the witness box, as being inconsistent with her consent to that of which she complains..."

14. Lack of consent was an element of the latter offence, even if not asserted as a factual issue. However, it is clear that the terms of a complaint could be given even if consent was not in issue - see R v Osborne [1905] 1 KB 551. Those decisions were confirmed by the High Court in Kilby v R [1973] HCA 30; (1973) 129 CLR 460 per Barwick CJ 467 ff.

15. Barwick CJ held that such evidence was admitted to prove and only to prove consistency. It may incidentally support a lack of consent. That is not, however, an independent ground of admissibility. It supports lack of consent only indirectly by supporting the credibility of the complainant.

16. It is, however, not the case that lack of recent complaint will lessen the credibility of a complainant. As Barwick CJ put it:

"(472) I can see no ground in logic for saying that because evidence of complaint is admitted to show consistency in the story told by the woman [or the man, if a sexual assault victim, evidence of non-complaint is evidence of her consent to the intercourse. In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not found an inference of consent. It does tell against the consistency of the woman's account and accordingly is clearly relevant to her credibility in that respect."

17. Despite this, in 1985 legislation was enacted to disadvantage sexual assault victims by denying admissibility to evidence of complaint whilst leaving it open to an accused to adduce, as before, evidence of non-complaint or of prior inconsistent statements in the course of a complaint. It was a well-meaning but futile attempt to reverse the "strong presumption", referred to in Hawkins, "Pleas of the Crown" Vol 1 Ch 41, s 9 (1824), based on the vestiges of the need to raise the "hue and cry", that a prosecutrix who made no complaint within a reasonable time (or, indeed, any complaint of any crime - see R v Wink (1834) 6 C&P 397; 172 ER 1293) should not be believed. The "presumption" had and has long ceased to exist save as a fantasy in the mind of some ill-advised advocates, as Barwick CJ's comment in Kilby (supra) indicated.

18. The circumstances surrounding and the spontaneity of the complaints made in this case were such as to clearly render them admissible under the "law and practice" obtaining before s 76C was enacted. They would have been admitted for the purpose of proving consistency and, hence, have supported the credibility of the complainant's in-court evidence, including her assertion of lack of consent. They would not have been admitted to prove that the facts asserted were true. That would have breached the hearsay rule.

19. Further, such evidence could only be admissible if the complainant was a witness - see R v Wallwork (1958) 42 CrAppR 153 (CCA). A person who heard the assertions forming the complaint could not otherwise give evidence of them.

20. Nevertheless, the effect of s 76C is that such evidence, however supportive it might be of a complainant's credibility, is not admissible in evidence unless it is admissible pursuant to some other rule of law or practice than that to which s 76C refers.

Is it admissible as part of the "res gestae"?

21. Literally, that phrase means "a part of the actions (res gesta pars rei gestae)". It refers to an utterance or action which is a part of an event in issue. In Mersey Docks Board v Liverpool Gas Co (1875) The Times (23 August 1875) a fitter rushed off a landing stage stating "Oh, my God, the stage is on fire. I did it". That was held admissible. However, in R v Bedingfield (1879) 14 Cox CC 341, a woman with her throat cut suddenly emerged from a house, crying out "See what Harry has done". That statement was excluded. The distinction is between utterances which are exclamations and testimonial utterances, notwithstanding that the utterance may be used to prove the fact asserted. Perhaps the high water mark of utterances used for testimonial purposes as part of the res gestae was R v Fowkes (1893) Stephens Digest of the Law of Evidence 12^th ed. p 8. The accused was known as "the Butcher". A face appeared at a window. The witness shouted "There's Butcher". By the time of trial he could do no more than provide an equivocal identification. It was held that evidence of the utterance was admissible to prove the truth of the fact asserted.

22. It is clear that the declarations made by the alleged victim in this case were testimonial not merely part of the act complained of. They would not have been admissible as part of the res gestae. Further, though a wider view of res gestae was taken in Ratten v R [1972] AC 378 (especially at 389-90) it remains confined to statements evoked by the pressure and intensity of the drama itself. That connection could not survive a deliberate decision to telephone friends to complain of the accused's conduct.

23. At the time of giving the ruling, I was of a different view. I am satisfied that I was mistaken as to that view.

Evidence of distressed condition

24. It was not suggested that the parties to the telephone conversations could not give evidence as to the apparent emotional state of the complainant. Given the proximity to the alleged event, that would have been probative of an event, at least to the complainant's perception, of the kind complained of. That is, it was probative of an event which had, at least, resulted in the complainant believing herself to have been sexually assaulted. It was open to a jury to have concluded that the distressed state of the complainant did result from an event of the kind she complained of.

25. If, however, evidence of the distressed state of the complainant was to be relied on for that purpose, the jury should have been warned that such a condition might be feigned, or, more appropriate to this case, arise from a misunderstanding as to the accused's acts and intentions (see eg. R v Flannery [1969] VR 586; R v Waye (1984) 14 A Crim R 391 (SACCA)).

26. There is, further, the difficulty adverted to by Lord Parker CJ in R v Redpath (1962) 46 CrAppR 319. In that case, the distressed condition observed whilst the complainant made her "recent complaint" was held incapable of amounting to corroboration. It was part of the res gestae of the complaint, not of the offence. In that case, however, evidence was admitted that the complainant had emerged from the area where the assault was alleged to have occurred in a distressed state. That observation was made before the complainant could have known she was observed and, of course, before she made her "recent complaint".

27. In the present case, the distressed condition of the complainant could not have been admitted as corroborative of the complainant's evidence as to the occurrence of the offence. It was only admissible if the evidence of recent complaint was itself admissible.

28. Even if it had been admitted, the jury should have been warned to place little or no weight on that observation of distressed condition alone.

Was the complaint evidence and the res gestae thereof, distressed condition, admissible by virtue of the Evidence Act 1995?

29. Such a contention was advanced in the matter of R v Pavlovic and others (21 July 1997, unreported). An objection was taken to proposed complaint evidence in the course of a trial. His Honour accepted that s 76C(2) of the Evidence Act 1971 would provide an exception to the prohibition in s 76C(1) if a provision in the Evidence Act 1995 otherwise rendered such evidence admissible.

30. In my view, that opinion is, with respect, entirely correct.

31. The Crown, in that case, had submitted that the complaint evidence was admissible under the Evidence Act 1995 as an exception to the hearsay rule. His Honour said as to that submission:

"What the effect is, I think is that the evidence of so called complaint is admitted as an exception to the hearsay rule, but it is not admissible in order to bolster the credit of the complainant ..."

32. That decision it should be emphasised, was ex tempore and the facts on which it was based were not reproduced in the extract of the case handed to me.

33. His Honour on 3 October 1997 handed down considered reasons for a ruling he had given in the course of the trial in R v GJ (3 October 1997; unreported).

34. In that case, the complainant of a sexual assault, aged eight or nine when it allegedly occurred, had provided evidence the prosecution proposed to lead before the jury of a complaint by her to her mother, some two days after the alleged assault. She had said:

"He [the accused] had touched me in my private places."

35. His Honour noted, as I have done, that if such evidence was admissible at common law, it was evidence of consistency not of the truth of what was said. It was never regarded as an exception to the hearsay rule in that sense. It was not corroboration. If it had been part of the event complained of, it might have been admitted as part of the res gestae. That was not possible on the facts of that case.

36. The question was whether the complaint was "otherwise admissible" so as to be preserved from exclusion by s 76C(2). His Honour referred to and relied upon a decision of the NSW Court of Criminal Appeal in R v Hall (28 February 1997; unreported). In that case it was held that s 66 of the NSW Evidence Act 1995 (relevantly identical to the Commonwealth Act), rendered such evidence admissible to prove the truth of the matters thereby asserted, so long as the conditions prescribed by s 66 itself were met.

37. The primary rule is expressed by s 59(1):

"Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation."

38. That this primary rule applied to the evidence proposed to be led by the Crown in this case is not in dispute.

39. The exception to it created by s 66 is, relevantly, expressed as follows:

"(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."

40. The issue recently came before the High Court in Papakosmas v R [1999] HCA 37; (1999) 164 ALR 548. The appellant, convicted of sexual assault in the District Court of New South Wales, appealed against the admission of evidence of recent complaint. The issue in the trial had been consent. Shortly after the occurrence of sexual intercourse, the complainant, in a distressed state, complained that the appellant had raped her. The essential facts are little different from the instant case. Her complaint was made to several workmates. She repeated her complaint to three of them in succession.

41. The difference from the present case is only that, in New South Wales, there was no equivalent of s 76C.

42. Gleeson CJ and Hayne J characterised the common law rule admitting complaint evidence as an exception to the rule forbidding the admission of prior consistent statements. It offended against the rule against hearsay and was not regarded as an exception to it. Such evidence was admitted only to show consistency.

43. However, evidence of consistency in other cases was not, their Honours considered, excluded because of lack of relevance:

"(554) [para 21] If evidence of complaint was irrelevant, it would not be necessary to invoke the rule against hearsay in order to exclude it, and reception of the evidence could not possibly be regarded as involving an exception to the hearsay rule or to the rule against reception of prior consistent statements."

44. The NSW Evidence Act 1995 excludes both hearsay and consistency evidence subject to exceptions. Section 56 excludes any evidence that is "not relevant". Section 55 defines relevance.

45. The evidence of recent complaint fell within the exception to the hearsay rule created by s 66 as:

* The maker of the statement was a witness at trial

* That person had first-hand knowledge of the facts asserted

* The statement was made when the facts asserted were "fresh in the memory" of that person.

46. Thus, if relevant, the evidence was admissible to prove the truth of the facts asserted, subject to the exclusionary rules provided by ss 135, 136 and 137.

47. Their Honours rejected a submission that such evidence should, as a general rule, be admitted only for the purpose of proof of consistency. They said, at 557:

"[40] There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law."

48. However, in the circumstance of the case under consideration, (557):

"[41] The recency and spontaneity of the complaint, and its consistency with other aspects of the complainant's appearance and demeanour, meant that it was not unfairly prejudicial. There is nothing to suggest such evidence was either misleading or confusing in its use for a hearsay purpose."

49. The jury had been warned that "mere repetition" did not add weight to the complainant's allegations.

50. This judgment, whilst finding that evidence of recent complaint, unless excluded by reference to ss 135, 136 or 137, was admissible as "first-hand hearsay", as well as to prove consistency, did not address the issues as to:

* The position if the evidence was not admissible for consistency purposes (see s 76C ACT Evidence Act)

* The limit, if any, on the number of successive complaints that might be led in evidence.

51. Some guidance, it seems to me, can be found in the joint judgment of Gaudron and Kirby JJ. At 560, they said:

"[52] What does emerge from the common law as a reflection of elementary logic is that, without more, evidence that a particular statement was made is probative only of its making and its contents and those inferences which, in the circumstances, may be drawn. On the other hand, it also emerges from the common law, and, again, as a matter of logic, that the circumstances in which a statement is made may sometimes render it probative of the facts asserted."

52. As to the circumstances referred to for admissibility, their Honours stated:

"(561), [56] Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true."

"[57] The question whether, in the particular circumstances, a statement that is not closely contemporaneous (for example, a subsequent statement to police) is probative of the facts asserted in it can logically only be answered in a case in which those circumstances arise. However, there must be some connecting circumstances because, otherwise, evidence that a particular statement was made is probative only of its making and its contents and such inferences as, in the circumstances, may be properly drawn."

53. The "recent complaint" evidence as tendered was, their Honours agreed, properly admitted into evidence.

54. McHugh J agreed that recent complaint evidence was admissible by virtue of s 66. To the objection that such evidence, being hearsay, might be inherently unreliable, his Honour referred to s 165. That section provides that if evidence is considered to be "of a kind that may be unreliable" then the jury should be given an appropriate warning. It could be so unreliable as to lead to its discretionary exclusion (see ss 135 and 137). However, the exclusion of recent complaint evidence is not based on lack of relevance. It is not to be regarded as lacking relevance merely because it, (s 55):

"(2) ...relates only to:

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence."

55. Relevance, however, must be judged in the context of proof of a fact that is actually in issue in the proceedings.

56. Complaint evidence could be perceived as relevant to prove intercourse (or other indecent act) or lack of consent.

57. In the present case consent was not put in issue. Recent complaint was therefore not relevant to that issue. There was a denial of the indecent act. The recent complaint evidence was relevant to proof of that issue.

58. It was admissible notwithstanding the hearsay rule. It was first-hand hearsay. The evidence of the recipients of the phone calls as to what was said, though strictly second-hand hearsay, was admissible pursuant to s 66(2)(b) given that the maker of the first-hand hearsay statement was to be called to give evidence. The statements also fulfilled the condition of recency - they were "fresh in the memory" of the maker of the statement (s 66(2)).

59. There remains the difficulty of giving effect to s 76C (ACT Evidence Act). First, even if evidence of recent complaint is relevant (and see Gaudron and Kirby JJ in Papakosmas 560-561 (paras [52]-[58]), it cannot be admitted to prove only credibility (see s 102, subject to s 108 of the Evidence Act 1995)).

60. It seems to me that as, at common law, recent complaint evidence was only admissible to prove "consistency" ie. credibility, it remains inadmissible for that purpose in this Territory even it may be admissible for another purpose. Thus, if proof of the event asserted and lack of consent are not in issue but merely consistency, s 76C will continue to bar the admission of recent complaint evidence.

61. The effect of this is totally to reverse the common law rule. Recent complaint, if relevant to an issue other than credibility will be admissible to prove the truth of the asserted fact but only under s 108 to re-establish credibility. It remains admissible, if a prior inconsistent statement, in cross-examination.

62. However, in the circumstances of this case the recent complaint evidence was relevant to prove the facts asserted, and admissible to prove the truth of those facts pursuant to s 66 of the Evidence Act 1995.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 3 February 2000

Counsel for the Crown: Mr C Todd

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Offender: Mr G Corr

Solicitor for the Offender: Mr Michael Baumann

Date of hearing: 28 October 1999

Date of judgment: 3 February 2000