Kilby v R [1973] HCA 30; (1973) 129 CLR 460 (29 August 1973)

HIGH COURT OF AUSTRALIA

KILBY v. THE QUEEN [1973] HCA 30; (1973) 129 CLR 460

Criminal Law

High Court of Australia.
Barwick C.J.(1), McTiernan(2), Menzies(3), Stephen(4) and Mason(5) JJ.

CATCHWORDS

Criminal Law - Rape - Consent - Absence of complaint by prosecutrix - Whether evidence of consent.

HEARING

Sydney, 1973, April 11, 12; August 29. 29:8:1973
APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

April 12.
BARWICK C.J.: The Court has considered this matter and has decided to refuse the application for special leave. It will put its reasons for doing so in writing in due course. The order of the Court is that the application is refused. (at p462)

August 29.
2. The following reasons for judgment were delivered by the COURT:-
BARWICK C.J. The applicant for special leave to appeal was convicted by a jury on 25th February 1970 at the Central Criminal Court, Sydney, of the rape on 25th January 1969 of Patricia Anne Organ (the prosecutrix) at Old Bar on the North Coast of New South Wales. (at p462)

3. At the time of the commission of the offence for which he was convicted the applicant was a little more than twenty years of age. He was tried along with two other young men, one about twenty-two years of age and the other almost the same age. All were charged that they did on the same evening and at the same place "without her consent ravish and carnally know" the said Patricia Anne Organ. One of the others was also convicted of rape but the jury were unable to agree on a verdict in the case of the third accused. (at p462)

4. The evidence against the applicant was that on 24th January 1969 the prosecutrix, then aged fifteen years and ten months, had travelled from Sydney to Taree in the company of a young man, sharing with him a motol room for the night though without the occurrence of sexual intercourse between them. She claimed to have been a virgin at the time of the subsequent intercourse by the applicant's fellow-accused who was convicted of rape in respect of that intercourse. Medical evidence given at the trial tended to confirm her claim. The young man with whom she was travelling sought out in Taree some of his mates without success in the first instance. Later he found them, some 80 or 100 in number - described in the evidence as "bikies" - at or near a hotel. One of these "bikies" was known to the prosecutrix: but she did not associate with any of the "bikies" when first they met. After spending the day in Taree, stopping at a "few hotels", a mixed party, which included the prosecutrix and the young man with whom she was travelling, set off for Old Bar Beach, which was about half an hour's travel by motor cycle from Taree. By the time Old Bar Beach was reached it was "late". On arrival there, desultory conversation seems to have occupied the prosecutrix for a time until she was "tackled" by the co-accused who was convicted. He picked her up and carried her about thirty yards away from the spot where she had been conversing with a group, including young women as well as young men. The prosecutrix claimed to have struggled and screamed and to have endeavoured to escape but without avail. The applicant assisted the other accused to lay the prosecutrix down on the grass, at which time they were joined by other youths who helped to hold her down while her slacks, jumper and underpants were removed. She was in menstruation and was wearing a sanitary pad which was removed. Her hands and legs were held whilst she screamed or attempted to do so and cried. A hand was placed over her mouth to prevent her screams being heard. At an early stage the prosecutrix asked that she be "let go" and this was denied her. Thereupon the co-accused who was later convicted "forced her" to have intercourse with him whilst she was so held. Thereafter four other youths did so including the applicant. A gang of youths stood round during the whole performance. Eventually a youth helped her dress and carried her down near a fire which had been kindled. She stayed the night on the beach, went next day to the motor cycle races with a youth and on the Monday "hitch-hiked" to Sydney. She made no "complaint" until she told her mother of the events of the night some considerable time later at Maitland Court before which she had occasion to appear. (at p463)

5. During the course of the trial a transcript of questioning of the applicant by police officers, which had been read by the applicant and signed by him as a record of the interview, was tendered and, over the objection of counsel, admitted in evidence. That document contained admissions of the truth of a number of the assertions made by the prosecutrix, for example, that she was "carried to the grass"; that some of the boys held her arms above her head; that her slacks, pants and jumper were removed; that the applicant helped to remove her clothing; and that the co-accused who was convicted had intercourse with her. The document further recorded the statements that there had been an arrangement between these accused that the applicant should have intercourse with the prosecutrix first and before his co-accused, an arrangement which through no fault of the co-accused was not fulfilled; that the applicant had intercourse with the prosecutrix; that she screamed till one of "the boys" put his hand over her mouth to stop her screaming; that "we" were putting our hands over her mouth because campers were passing by and "we" thought they would hear her screaming. (at p464)

6. In summing up the learned trial judge instructed the jury as follows:

"I also tell you as a matter of law in a crime of this nature
if the woman has made a complaint of what happened to her
within a reasonable time, on the first reasonable opportunity
that she has, it is open to the Crown to lead that in evidence.
It is only open to the Crown to do that if such a complaint is
made within a reasonable time after the event. If such a
complaint is given in evidence it is not any evidence of the
facts, it is only evidence that her conduct was consistent with
that of a woman who had been raped. In this case there is
not any evidence lead by the Crown of any such complaint."
the applicant:

"COUNSEL FOR THE ACCUSED: The...direction I would ask
your Honour to give is in these terms: that the failure of the
prosecutrix to make a fresh complaint is evidence of consent.
Your Honour's only direction, as I recall, on the question of
complaint was the customary direction as to the usual evidence
of fresh complaints if there is any, plus the added direction
that in this case there was none. I ask for a further direction
that the absence of fresh complaint is itself evidence of consent.
...
HIS HONOUR: You seek a direction from me that because there
is no fresh complaint that is evidence of consent?
COUNSEL FOR THE ACCUSED: That is my submission.
HIS HONOUR: I will not give that direction." (at p464)

7. The applicant's motion for special leave is based on two submissions, each said to raise a matter of general public importance. (at p464)

8. The first submission is that the trial judge was in error in not instructing the jury that the absence of a complaint by the complainant at the earliest reasonable opportunity thereafter, intercourse by the applicant having admittedly taken place with her, was evidence of her consent to that intercourse. (at p464)

9. The second submission was that the above-mentioned record of interview by police officers with the accused, voluntarily signed by him, was wholly inadmissible, it being said that its only permissible use in the trial was as a means of refreshing the recollection of the officer who conducted the interview. (at p464)

10. It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given. (at p465)

11. The circumstances of the instant case which I have detailed would, however, in my opinion, be illustrative of an occasion when such an instruction might reasonably be omitted. Clearly, if the evidence of the prosecutrix and the signed statement of the applicant were accepted by the jury, failure to complain could have no relevance. If that statement were not accepted by the jury and the credit of the prosecutrix was under consideration, failure to complain could, in my opinion, have some but very little significance. Her story was that she was held down and raped while physically and vocally resisting, her endeavours by screaming to call attention to her plight being frustrated by her mouth being covered. There was no room to accept a view of the prosecutrix's evidence that intercourse took place with her in any other circumstances. So far as she was concerned it was a case of intercourse whilst she, protesting, was physically overpowered. (at p465)

12. The applicant did not give evidence but made a statement in which he said that, seeing the prosecutrix on the ground talking to one of "the boys", he began to talk to her. As she was endeavouring herself to take her pants off, he helped her. He was kneeling down beside her when she removed her sanitary pad and said "I don't care, but you" - the assembled group - "might". One of those present said he didn't care and had intercourse with her. Then the applicant did so, because, as he said, she was consenting. He denied that she resisted or screamed. He explained the signed statement as due to his confusion and that the police said "that it would be all right, all they wanted was a record and they would fix everything". (at p465)

13. In my opinion, for reasons I shall give, the trial judge, at best, in any case could only instruct the jury that a failure to complain should be taken into consideration by them when they were considering whether they would accept the prosecutrix's evidence. He could not in any case, in my opinion, the basis of which I shall later discuss, tell them that the failure to complain bore out the applicant's statement. Thus, in this case, I would see little need to instruct the jury at all as to the effect upon the prosecutrix's credibility of her failure to complain. (at p466)

14. However, the applicant does not raise or rely on the failure of the judge to instruct the jury as to the effect upon the credibility of the prosecutrix of a failure to complain. His counsel submits that as a matter of law a judge on a trial of an accused for rape is bound in every case to instruct the jury, no matter what the circumstances, that the failure to make such a complaint is evidence of consent by the woman to the intercourse. The submission is founded on the proposition that because evidence of proximate complaint is evidence, as it was said, that the woman had not consented, the lack of complaint must be evidence of consent. But, in my opinion, even granting the premises, the conclusion does not follow. Further, evidence of a complaint at the earliest reasonable opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped: that is to say, it is admitted as matter going to her credit (see Reg. v. Lillyman, per Hawkins J. (1896) 2 QB 167, at p 170 ; Sparks v. The Queen (1964) AC 964, at p 979 ). Because the account with which the complaint is said to show consistency is an account of intercourse without consent, it has often been said that the evidence of the complaint is evidence negating consent. In my opinion, this manner of expressing the function of the evidence of proximate complaint is not correct: though, as it shows consistency in her account of rape, the fact of the complaint buttresses her evidence of no consent or, as it was said in Reg. v. Lillyman (1896) 2 QB 167 , is inconsistent with consent. At times also it is said with technical inaccuracy that the evidence of such a complaint is corroborative of the woman's evidence of the rape. It is quite clearly not so corroborative (see R. v. Christie (1914) AC 545 ; Eade v. The King [1924] HCA 9; (1924) 34 CLR 154 ), though it is so spoken of in American literature (see Wigmore on Evidence, 3rd ed. (1940), vol. IV, p. 219, par. 1134 and p. 227, par. 1137; vol. VI, p. 173, par. 1761). (at p466)

15. However, having regard to the importance of the matter and the need to have uniformity of practice and the avoidance of laxity in the use of evidence or lack of evidence of proximate complaint, it is proper that I should examine the course of decision in the courts. (at p466)

16. Wigmore, (3rd ed.), vol. IV, p. 219, par. 1134, says as to the admission of evidence of a proximate complaint by a prosecutrix in rape:

"Down to the beginning of the 1800's, evidence of this sort
was received by the courts as a matter of old tradition and
practice, with little or no thought of any principles to support
it. The tradition went back by a continuous thread to the
primitive rule of hue-and-cry: and the precise nature of the
survival is more fully explained in dealing with the Hearsay
Exception of 'Res Gestae'. But as more and more attention
began to be given, in the early 1800's, to the principles underlying
every sort of evidence, there came to be felt a need of
explaining on principle this inherited and hitherto unquestioned
practice; and thus the various aspects of its significance
began to be thought of."

Wigmore gives the American experience in some detail: but, though this is instructive, we are here concerned with the experience of the common law of England which we have inherited and which in this field we still apply without modification. (at p467)

17. A review of the subject begins, in my opinion, with Reg. v. Lillyman (1896) 2 QB 167 . The trial judge at the time of an indictment for rape had admitted, over the objection of counsel for the accused, all that the prosecutrix had said to her mistress very shortly after the commission of the acts of the accused of which the prosecutrix complained. The Court of Crown Cases Reserved (Lord Russell of Killowen C. J., Pollock B., Hawkins, Cave and Wills JJ.) decided that the details of the complaints were admissible and took occasion to state the basis of admissibility and the function of the evidence of a proximate complaint. Prior to that decision there had developed in England a practice of excluding the details of a complaint by a prosecutrix, whilst admitting the fact that she had complained at a time proximate to the occurrence forming the basis of the charge against the accused. (at p467)

18. It is worth mentioning in passing that Sir Robert Finlay the Solicitor-General in arguing for the Crown in Lillyman's Case (1896) 2 QB, at p 169 submitted that "the principle upon which the fact of the complaint having been made is allowed to be given in evidence is that it is the natural expression of the woman's feelings that as soon as possible after the occurrence she should tell her mother, or her mistress, or some person in a confidential relation, what has happened; it is further admissible as evidence of non-consent". But quite clearly the Court did not accept the whole of that submission. Passages in the judgment delivered for the Court by Hawkins J. to my mind make this quite plain (1896) 2 QB, at p 170 .

"It is necessary, in the first place, to have a clear understanding
as to the principles upon which evidence of such a
complaint, not on oath, nor made in the presence of the
prisoner, nor forming part of the res gestae, can be admitted.
It clearly is not admissible as evidence of the facts complained
of: those facts must therefore be established, if at all, upon
oath by the prosecutrix or other credible witness, and, strictly
speaking, evidence of them ought to be given before evidence
of the complaint is admitted. The complaint can only be used
as evidence of the consistency of the conduct of the prosecutrix
with the story told by her in the witness-box, and as being
inconsistent with her consent to that of which she complains." (at p468)

19. Here the emphasis is that the complaint is not probative but only an aid to the credibility of the prosecutrix. When it is said that the complaint can be used "as being inconsistent with her consent to that of which she complains" the Court, in my opinion, is but stating the obverse of the statement that the complaint tends to show consistency in the evidence of the prosecutrix which, whether consent be an issue in the trial or not, must in the nature of things be an account of an occurrence taking place without her consent. (at p468)

20. The passage cited by Hawkins J. from Blackstone shows that the admission of evidence of the complaint is based solely on the effect it has on the credit of a prosecutrix (1896) 2 QB, at p 171 ,

"...but the credibility of her testimony, and how far forth
she is to be believed, must be left to the jury upon the circumstances
of fact that concur in that testimony. For instance:
if the witness be of good fame; if she presently discovered the
offence, and made search for the offender...these and the
like are concurring circumstances, which give greater probability
to her evidence. But, on the other side, if she be of evil fame,
and stand unsupported by others; if she concealed the injury
for any considerable time after she had opportunity to complain;
if the place, where the fact was alleged to be committed, was
where it was possible she might have been heard, and she
made no outcry; these and the like circumstances carry a
strong, but not conclusive, presumption that her testimony is
false or feigned". (at p468)

21. Having dealt with the submission that the particulars of the complaint ought not to be admitted and having examined in that connexion a course of decision between 1779 and 1877, the judgment proceeded to express the Court's definite opinion (1896) 2 QB, at p 177 :

"After very careful consideration we have arrived at the
conclusion that we are bound by no authority to support the
existing usage of limiting evidence of the complaint to the bare
fact that a complaint was made, and that reason and good sense
are against our doing so. The evidence is admissible only upon
the ground that it was a complaint of that which is charged
against the prisoner, and can be legitimately used only for the
purpose of enabling the jury to judge for themselves whether
the conduct of the woman was consistent with her testimony
on oath given in the witness-box negativing her consent, and
affirming that the acts complained of were against her will,
and in accordance with the conduct they would expect in a
truthful woman under the circumstances detailed by her." (at p469)

22. In my opinion, nothing in this judgment lends any support to the proposition that evidence of the making of the complaint is evidence of any fact other than the fact of the making of the complaint itself and of the terms in which it is claimed to have been made. When Hawkins J. in the first of the two passages which I have quoted from Lillyman's Case (1896) 2 QB, at p 171 spoke of the evidence of a complaint as being inconsistent with consent he was not, in my opinion, intending to place its admissibility upon a second and different ground from that of its tendency to show consistency in the conduct of the prosecutrix. He was merely indicating the extent of its effect on the credit of the prosecutrix. (at p469)

23. In my opinion, the error which has been made by text writers and in subsequent decisions is in treating this remark of Hawkins J. as if it did set up a second and independent ground of admissibility. In my respectful opinion, it did not. (at p469)

24. In Reg. v. Lillyman (1896) 2 QB, at pp 170-171 , reference was made to the passage in Hawkins' Pleas of the Crown where it is said "It is a strong, but not a conclusive, presumption against a woman that she made no complaint in a reasonable time after the fact". But just as the fact of a proximate complaint tends to support credibility of the complainant so its absence may be a considerable factor where a tribunal of fact is deciding on the credibility of the complainant. The word "presumption", in this connexion, is not, of course, a reference to a presumption of law but is no more, in my opinion, than a statement that a tribunal of fact might well consider that a woman who made no complaint was not to be believed when she gave an account of events to which she gave no consent. This use of the word "presumption" has assisted to give rise to misconception as to the basis of admissibility of a proximate complaint and as to the effect of the absence of such a complaint. (at p469)

25. In any case, to say that Lillyman's Case (1896) 2 QB 167 recognizes that the evidence of a proximate complaint may be used to negative consent is to make an ambiguous statement. If it means that in so far as a complaint tends to buttress the evidence of the prosecutrix that what occurred did occur without her consent and in so far as belief in the truth of her statement would negative consent, it may be an acceptable statement, though, I think, prone to be, as it has proved to be, misleading. If, of course, it means that the evidence of a complaint is direct evidence negativing consent, I am of opinion that the statement is completely unwarranted, both in point of precedent so far as Lillyman's Case (1896) 2 QB 167 is concerned and in point of logic. It is true that Ridley J. in R. v. Osborne (1905) 1 KB 551 treated the evidence of proximate complaint as admissible on two grounds, founding himself on Lillyman's Case (1896) 2 QB 167 . He did not intend to depart from the decision or to enlarge its reasoning. But as I have indicated, Lillyman's Case (1896) 2 QB 167 does not really warrant the conclusion that there are two distinct grounds of admissibility of evidence of proximate complaint. Always the basic authority for the contrary proposition in the texts and in the decisions has been Lillyman's Case (1896) 2 QB 167 . (at p470)

26. Phipson in all its editions has stated the rule thus:

"In cases of rape, indecent assault, and similar offences,
the fact that the prosecutrix or prosecutor made a complaint,
shortly after the outrage, of the matters charged against the
prisoner, together with the particulars of the complaint, are
admissible as evidence in chief for the prosecution, not to prove
the truth of the matters stated, but (1) to confirm her or his
testimony and (2) where consent is in issue, to disprove
consent." (11th ed. (1972), par. 355).

See also Archbold's Criminal Pleading Evidence and Practice, 36th ed. (1966), p. 392, par. 1077:

"In Reg. v. Lillyman (1896) 2 QB 167 , it was held after consideration of

the earlier authorities, that upon the trial of an indictment for
rape or other kindred offences against women or girls (including
indecent assault and sexual intercourse with girls under thirteen
and between thirteen and sixteen) the fact that a complaint
was made by the prosecutrix shortly after the alleged occurrence
and the particulars of such complaint, may so far as they relate
to the charge against the prisoner, be given in evidence by the
prosecution, not as being evidence of the facts complained of
but as evidence of the consistency of the conduct of the
prosecutrix with the story told by her in the witness-box, and
as negativing consent on her part. The mere complaint is no
evidence of the facts complained of, and its admissibility
depends on proof of the facts by sworn or other legalised testimony:
R. v. Brasier (1779) 1 Leach 199 (168 ER 202) ; R. v. Wood (1877) 14 Cox

46 ; 1 Hawk, c. 16, s. 9; 4 Bl Com 211,213 .

In R. v. Osborne (1905) 1 KB 551 , the indictment was for an indecent
assault on a girl under thirteen, and consent was therefore
immaterial. It was held that in the case of charges of sexual
offences against females, evidence of fresh complaint is
admissible 'whether non-consent is legally a necessary part of
the issue or whether on the other hand it is what may be
called a collateral issue of fact' in consequence of the story
told by the complainant in the witness-box, and the complaint
is not admissible merely as negativing consent, but as being
consistent with the sworn evidence of the complainant." (at p471)

27. Though Ridley J. in R. v. Osborne (1905) 1 KB 551 said that evidence was admitted because, if believed, it was consistent with a complainant's story in evidence and also that it was inconsistent with consent, he did not say at any time that it was evidence of the absence of consent. Indeed on neither of the bases of the admissibility which his Lordship expressed is the complaint probative of any fact, not even of the facts made in the complaint. (at p471)

28. The definitive passage in the judgment of Hawkins J. in Reg. v. Lillyman (1896) 2 QB, at p 177 finds its echo and endorsement in Sparks v. The Queen (1964) AC 964 . The conclusion there expressed that the evidence of a complaint is not admissible in the absence of evidence by the prosecutrix is emphatic of the proposition that the evidence of a complaint is not probative of the absence of consent. (at p471)

29. Jordan C.J. in Smith v. Commonwealth Life Assurance Society Ltd. (1935) 35 SR (NSW) 552, at p 556 , said:

"Such evidence is admissible, not because what was said by
way of complaint can be treated as corroborating the evidence
of the facts of the alleged happening given by the witness in
the witness-box, but, firstly, because absence of complaint is
strong evidence of consent in any case in which consent is
material, and secondly because the fact that a complaint was
made at the time in terms similar to the evidence afterwards
given, goes to negative the possibility that what is now said
in evidence is an afterthought - an invented story prepared
after the event - a possibility which is regarded as existing in
a special degree in this class of case."

In support of these propositions the learned Chief Justice cited R. v. Osborne (1905) 1 KB 551 and R. v. Christie (1914) AC 545 . In my respectful submission neither of these cases lends support for either of these propositions. Halsbury (1952), 3rd ed., vol. 10, p. 468, par. 859, in my opinion, puts the matter in proper perspective when it is there said:

"The admissibility of the particulars of a complaint made
soon after the commission of an alleged offence in the absence
of the defendant by the person in respect of whom a crime is
alleged to have been committed is peculiar to rape, indecent
assault and similar offences upon females, and also offences
of indecency between male persons. This evidence is not to
be taken in proof of the facts complained of, but only as matter
to be borne in mind by the jury in considering the consistency,
and, therefore, the credibility, of the complainant's story,
including the consideration of the question of consent if the
prisoner raises that as a defence." (at p472)

30. 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. (at p472)

31. To understand the reasons for the admissibility and the use which can properly be made of the evidence of recent complaint is to deny the validity of the applicant's proposition that lack of complaint is probative of consent. 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, 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. (at p472)

32. I am clearly of opinion therefore that a trial judge is not only not bound as a matter of law but not entitled to instruct a jury in the trial of an accused on a charge of rape that the failure of the woman claiming to have been raped to complain at the earliest possible opportunity is evidence of her consent to the intercourse. Statements to the contrary in Reg. v. Hinton (1961) Qd R 17 and in Reg. v. Mayberry (Court of Criminal Appeal of Queensland 1973, unreported) are not, in my opinion, supportable. (at p472)

33. The second submission made on behalf of the applicant is, in my opinion, unacceptable. The "record of interview" is a written document, accepted as to its contents and signed by the accused. To the extent that its contents are relevant it is in my opinion clearly admissible, assuming its signature and the material it contains to have been voluntarily given. That it comes into existence at the instance of the police and as the result of police questioning does not mean that for those reasons alone it is inadmissible. (at p472)

34. Of course, if the document contains inadmissible or irrelevant matter, that matter should not be admitted, but should be excised from the document and not placed before the jury. But to the extent that it contains an admission of guilt, or an admission of a fact or facts relevant to an issue in the trial or from which such a fact or facts may be inferred or statements connecting the story it tells, clearly it will be admissible. No doubt counsel for an accused and the trial judge will both scan such a record of interview with scrupulous care to ensure that only so much of it is admitted as is relevant and admissible to the extent I have indicated. (at p473)

35. Over and above the question of admissibility is the general discretion of the trial judge to ensure fairness both to the Crown and to the accused. He will exercise that discretion in deciding whether to admit the document and in controlling the use made of it if and when admitted into evidence. In all that I have said, I have assumed voluntariness and an absence of unlawful or unfair procurement calling for the exclusion of the document in the exercise of the judicial discretion. (at p473)

36. In my opinion, the applicant's submission that the signed record of interview irrespective of what it contains cannot be admitted but used only to refresh recollection is quite clearly not sustainable. (at p473)

37. Having made these observations on the submissions of the applicant, I am of opinion that the case is not a case in which we should grant special leave. (at p473)

McTIERNAN J. I have had the advantage of reading and considering the judgment of the Chief Justice which he has just handed down and I entirely agree with it. (at p473)

MENZIES J. Two grounds for the grant of special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales were urged by counsel for the applicant, an accused convicted upon a charge of rape. (at p473)

2. The first is that there was a misdirection at the trial in that the learned trial judge did not direct the jury that the absence of a recent complaint, by the girl alleged to have been raped, was evidence that she consented to the intercourse which took place between the accused and herself. (at p473)

3. The complaint at the earliest reasonable opportunity that offers by a woman alleged to have been raped is, it has long been established, admissible evidence against the man charged with the offence. The basis of the admission of such a complaint has been explained, from time to time, in language which has not always been exactly to the same effect. It has, however, always been recognized that the making of such a complaint is a matter going to support the credibility of evidence of the woman alleged to have been raped. (at p474)

4. In Sparks v. The Queen (1964) AC 964 , the House of Lords decided that, upon the trial of a man charged with the indecent assault of a girl just under the age of four, evidence by the girl's mother of a complaint by the girl was inadmissible because the girl had not herself given evidence. Lord Morris, speaking for the House of Lords said (1964) AC, at p 979 :

"If the girl had been old enough to give evidence and if she
had given evidence, and if the mother had given evidence as
to a complaint made to her by the girl shortly after the alleged
assault, the latter evidence would not be evidence which
proved the truth of anything that the girl had said. If admitted
it would be received on the basis that it tended to show
consistency in her conduct and consistency with the evidence
given by her in court: it would relate to her credibility."

This decision shows that in cases where complaints are admissible, the complaint is not admitted as hearsay evidence of the relevant facts. Were that the case, the complaint would be admissible whether or not the female assaulted or raped gave evidence. (at p474)

5. It is also established that, when admitted, the complaint does not merely support a woman's denial of consent to intercourse; it may support the whole of her story including for instance the identification of her attacker. It is because this is so that the details of the complaint and not merely the fact of the complaint may be proved: Reg. v. Lillyman (1896) 2 QB 167 . There, in a judgment which said all that needs to be said on the matter, this appears (1896) 2 QB, at pp 177, 178 :

"The evidence is admissible only upon the ground that it
was a complaint of that which is charged against the prisoner,
and can be legitimately used only for the purpose of enabling
the jury to judge for themselves whether the conduct of the
woman was consistent with her testimony on oath given in
the witness-box negativing her consent, and affirming that the
acts complained of were against her will, and in accordance
with the conduct they would expect in a truthful woman under
the circumstances detailed by her.
It has been sometimes urged that to allow the particulars
of the complaint would be calculated to prejudice the interests
of the accused, and that the jury would be apt to treat the
complaint as evidence of the facts complained of. Of course,
if it were so left to the jury they would naturally so treat it.
But it never could be legally so left; and we think it is the
duty of the judge to impress upon the jury in every case that
they are not entitled to make use of the complaint as any
evidence whatever of those facts, or for any other purpose than
that we have stated. With such a direction, we think the
interests of an innocent accused would be more protected than
they are under the present usage. For when the whole statement
is laid before the jury they are less likely to draw wrong
and adverse inferences, and may sometimes come to the
conclusion that what the woman said amounted to no real
complaint of any offence committed by the accused." (at p475)

6. Not infrequently the main issue in a trial for rape is the absence of the consent of the woman in respect of whom the charge is made. Where this is so, it is, of course, natural enough to speak, without precision, of the proof of a recent complaint as evidence of the absence of consent. It is, for instance, this consideration that explains the language of judges in cases such as R. v. Osborne (1905) 1 KB 551, at pp 560, 561 in a judgment which strongly emphasizes that evidence of the recent complaint is admitted not as evidence of the acts complained of, but as affording greater probability that the evidence of the woman who has made such a complaint is true. (at p475)

7. That the law for potent reasons so admits evidence of a recent complaint against an accused charged with rape affords no basis for the contention of counsel for the applicant here that, in a case of rape where there has been no complaint, the judge must, as a matter of law, instruct the jury that the absence of recent complaint affords evidence of the consent to intercourse of the woman alleged to have been raped. To decide that the absence of the complaint is evidence of such consent would be an unwarranted generalization for the absence of complaint might, in a particular case, be due to other considerations. A generalization that the absence of complaint renders it probable that there was consent to intercourse, is to my mind without justification either in law or in life, yet the direction here contended for would be proper only if the absence of complaint tended to support that conclusion. It is, of course, true that in a particular case the explanation of an absence of complaint might be that there was consent, but the correct way to deal with that possibility, in an appropriate case, is for the judge to tell the jury that in considering the evidence that the intercourse was had without consent, it is a circumstance that is to be taken into account that there was no complaint by the woman at the first reasonable opportunity for making it. This is, however, another matter. Such a direction would be based upon like considerations to those rendering a complaint admissible whereas the direction here sought would depart from those considerations and would rest rather upon what, in one aspect, has been decisively rejected i.e., that a complaint or the absence of a complaint is material evidence about what had happened. (at p476)

8. The second matter relates to the admissibility of a record of interview between the accused and a police officer which the accused signed as correct. The record contains admissions by the accused of matters tending to establish his guilt. (at p476)

9. I consider the signed record was admissible. In this case, I am disposed to think that the record contained nothing inadmissible although some of the questions and answers do no more than show the setting of the interview and provide background of completeness and continuity for what is of evidential value. It hardly needs to be said, however, that if there were any part of the record which contained inadmissible matter either because of the irrelevance to the charge or because what was said if admitted would infringe the rules of evidence, e.g., as tending to show that the accused was of bad character or had previous convictions, so much of the statement would have to be excised before the document could be admitted. (at p476)

10. It is for the reasons now stated that I considered that special leave to appeal should be refused. (at p476)

STEPHEN J. I agree in the judgment of the Chief Justice. (at p476)

MASON J. I am in agreement with the reasons for judgment which have been prepared by the Chief Justice and my brother Menzies. (at p476)

2. For these reasons it is my opinion that the application for special leave to appeal should not be granted. (at p476)

ORDER

Special leave to appeal refused.