Complaint evidence

[2-550] Introduction

Evidence of complaint by an alleged victim is admissible under s 66(2) Evidence Act 1995, where the complainant gives evidence. It is some evidence of the fact that the accused person assaulted the victim as alleged in the complaint. The evidence can also be used to show consistency of conduct by the complainant. This type of evidence is not restricted to sexual assault cases. Evidence can be admitted under this section as relevant to any offence provided it is first-person hearsay under s 62 of the Act.

Evidence of complaint can also be admissible under s 65(2) Evidence Act, where the person making the complaint is not available to give evidence, for example where the complainant is dead or for some other reason is not available: see cl 4 of the Dictionary to the Act.

Further, such evidence can be admitted with leave under s 108(3)(b) in order to re-establish the credibility of the complainant. In that case, the complaint can become evidence of the truth of the allegation made in the complaint by the operation of s 60 of the Act unless limited under s 136.

[2-560] Evidence of complaint where witness available to give evidence — s 66(2)

As to the admissibility of complaint under s 66(2): see generally Papakosmas v The Queen (1999) 196 CLR 297; Criminal Practice and Procedure NSW at [3-s 66.1]; Uniform Evidence Law at [1.3.2300]ff; The New Law of Evidence at [66.2]ff.

The use to be made of the evidence can be limited under s 136 of the Act so that it cannot be used as proof of the fact of what was asserted in the complaint, but relevant only to the credibility of the alleged victim. This limit, however, would not generally be applied to complaint evidence admitted under s 66(2): see generally: R v BD (1997) 94 A Crim R 131; Papakosmas v The Queen at [40]; Criminal Practice and Procedure NSW at [3-s 136.1]; Uniform Evidence Law at [1.3.14640]ff; The New Law of Evidence at [136.1]ff.

Section 66 was amended by the insertion of subs 2A: see R v XY [2010] NSWCCA 181. The amendment applies to trials commenced after 1 January 2009. For trials commenced before that date the issue is determined by a consideration of the temporal proximity of the complaint to the incident about which the complaint is made: see generally Graham v The Queen (1998) 195 CLR 606; R v Le [2000] NSWCCA 49; Gordon-King v R (2008) 192 A Crim R 448; Skipworth v R [2006] NSWCCA 37 and cf Langbein v R (2008) 181 A Crim R 378.

As the evidence is admitted as hearsay, a warning may be required under s 165(1)(a) of the Act: see generally R v TJF (2001) 120 A Crim R 209 where there was delay and the complaint was prompted; Criminal Practice and Procedure NSW at [3-s 165.1]ff; Uniform Evidence Law at [1.4.2860]ff; The New Law of Evidence at [165.2]ff.

[2-570] Suggested direction — where complaint evidence admitted under s 66(2)

As has been noted, evidence under s 66(2) need not relate to a sexual assault offence. However, for convenience the suggested direction is based upon an allegation of assault by the accused upon the complainant.

The Crown relies upon what [the complainant] said to [person to whom complaint was made] about the alleged assault by [the accused] upon [him/her], as evidence that such an assault did occur. You will recall the evidence that was given about that complaint.

[Set out evidence of the complaint(s) made by the complainant and any other witness.]

It is for you to decide whether the complaint was made and what its contents were.

[If appropriate set out the defence arguments about the complaint evidence.]

If you find that the complaint was made substantially to the effect that [state nature of the complaint] then you can use evidence of what was said in the complaint as some evidence that such an assault did occur. That is, you can use it as some evidence independent of the evidence given to you of that incident by [the complainant] in the witness box. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what [the complainant] alleged against a person. A jury is entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by [the complainant] and more likely to be accurate. [There may be other matters that can also be taken into account, such as the distressed condition of the complainant.] It is a matter for you whether you draw that conclusion in this particular case and so treat the complaint as evidence of the alleged assault by [the accused] in addition to the evidence that has been given about it in this courtroom. If you do use it as some evidence of the assault, that is the subject of the charge, then what weight you give it is again a matter for you.

Whether you do use the evidence of complaint in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that [the complainant] raised the allegation against [the accused] at the time and in the manner that [he/she] did would lead you to accept the evidence [he/she] gave in the witness box. In other words, it makes [his/her] evidence more believable than if [he/she] had not raised the allegation as [he/she] did.

Again, it is for you to decide whether this complaint was made, but if you are satisfied that it was, then the question you should ask yourself is, did [the complainant] act in the way you would expect [him/her] to act if [he/she] had been assaulted as [he/she] said [he/she] was? Is what [he/she] did the sort of conduct you would expect of a person who has been assaulted in that way? If you think that [the complainant] has done what you would expect someone in [his/her] position to do, that may support the Crown case because you may find that there is a consistency between [the complainant’s] conduct and the allegation that [he/she] makes against [the accused].

On the other hand, if [the complainant] has not acted in the way you would have expected someone to act after being assaulted as [he/she] described, then that may indicate that the allegation is false. But bear in mind when considering this issue that there may be good reasons why [the complainant] did not raise the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false.

[Refer to arguments as to whether there were or were not good reasons for the failure to raise the allegation immediately.]

Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion(s).

[Give a warning as to the hearsay nature of the evidence under s 165 if such a warning is requested.]

[2-580] Suggested direction — where complaint evidence is limited under s 136

As has been noted, evidence under s 66(2) need not relate to a sexual assault offence. However, for convenience the suggested direction is based upon an allegation of assault by the accused upon the complainant.

The Crown relies upon what [the complainant] said to [person to whom complaint was made] about the alleged assault by [the accused] upon [him/her], as evidence that [the complainant] is telling you the truth in the allegation she makes in the witness box. You will recall the evidence that was given about that complaint.

[Set out evidence of the complaint(s) made by the complainant and any other witness.]

It is for you to decide whether the complaint was made and what its contents were.

[If appropriate set out the defence arguments about the complaint evidence.]

If you are satisfied that a complaint was made in terms consistent with the allegation made in this court, then the question you should ask yourself is, did [the complainant] act in the way you would expect [him/her] to act if [he/she] had been assaulted as [he/she] said [he/she] was? Is what [he/she] did the sort of conduct you would expect of a person in [his/her] position at the time? If you think that [the complainant] has done what you would expect someone in [his/her] position to do, that may support the Crown case because it makes [his/her] evidence more believable. You may find that there is a consistency between [the complainant’s] conduct and the allegation [he/she] makes against [the accused]. This evidence goes only to the consistency of conduct of [the complainant] and, therefore, may impact upon your assessment of [his/her] credibility. But you can only use the evidence of the complaint in this way. You cannot use it as any evidence that the assault occurred. The Crown did not lead the evidence as itself being able to prove the charge. You can only find the charge proved on the evidence given in the courtroom and not what was said at some other place or time.

It follows that if you find that [the complainant] has not acted in the way you would have expected someone to act after being assaulted as [he/she] described then that may indicate that the allegation is false. But remember that there may be good reasons why [the complainant] did not raise the allegation immediately and that a failure to do so does not mean that the allegation is false.

[Refer to arguments as to whether there were or were not good reasons for the failure to raise the allegation immediately.]

Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.

[2-590] Evidence of complaint where witness not available under s 65(2)

Evidence of a complaint about the accused’s conduct can be admitted as evidence of the truth of the allegation under s 65 even though the complainant is not available as a witness, for example in a murder case. Such evidence will usually be admitted as evidence of a relationship between the complainant and the accused and is admitted for the purpose of being used by the jury as evidence of the truth of the allegation made.

Section 65(2) is premised upon an assumption that a party is seeking to prove a specific fact and so it requires the identification of the particular representation to be adduced to prove the fact: Sio v The Queen [2016] HCA 32 at [57]. It is then that the court considers the circumstances of the representation to determine whether the conditions of admissibility have been met under s 65(2): Sio v The Queen at [57]. Section 65(2)(d)(ii) is directed at circumstances that of themselves tend to negative motive and opportunity of the declarant to lie: Sio v The Queen at [64].

Section 65(2)(d)(ii) requires a court to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character: Sio v The Queen at [64].

As to evidence admitted under s 65(2): see generally Sio v The Queen at [53]–[74]; R v Serratore (1999) 48 NSWLR 101; R v Toki (No 3) (2000) 116 A Crim R 536; Criminal Practice and Procedure NSW at [3-s 65.1]ff; Uniform Evidence Law at [1.3.2060]ff; The New Law of Evidence at [65.2]ff.

As to the unavailability of a witness: see cl 4 of the Dictionary and generally, Criminal Practice and Procedure NSW at [3-s 65.15]; Uniform Evidence Law at [1.7.40]ff; The New Law of Evidence at [65.4].

Because of the variety of the situations in which such evidence can be given, no suggested form of direction is appropriate. However, a suitable direction can be adapted from the first part of the suggested direction in [2-570].

A warning would need to be given as to the fact that the evidence is hearsay under s 165 if it is requested.

[2-600] Evidence of complaint as a prior consistent statement under s 108(3)

Evidence of complaint that is not admitted under s 66(2), can be admitted in examination in chief or re-examination of the complainant by the Crown under s 108(3)(b). The evidence can only be introduced with the leave of the court: see s 192(2).

As to s 108(3)(b): see generally, Graham v The Queen (1998) 195 CLR 606; R v DBG (2002) 133 A Crim R 227; Criminal Practice and Procedure NSW at [3-s 108.1]; Uniform Evidence Law at [1.3.8360]ff; The New Law of Evidence at [108.3]ff.

[2-610] Suggested direction — evidence of complaint used to re-establish the complainant’s credit

This direction addresses the scenario where complaint evidence is admitted to rebut evidence of a prior inconsistent statement or an allegation of fabrication and not as first-hand hearsay under s 66(2).

The next direction I must give you concerns the evidence of [the complainant] that [refer to evidence led under s 108(3)]. The Crown has led that evidence in order to meet the suggestion made by [the accused] that [the complainant] has not told you the truth in [his/her] evidence here in court.

[Refer to defence argument.]

However, the Crown argues that [refer to relevant evidence of complaint], together with the circumstances in which it was made, demonstrate that [the complainant] made [his/her] allegation of this nature in [refer to the relevant time].

In other words, the Crown says the evidence supports the credibility of [the complainant] as a witness, in that it indicates that if you accept the evidence, it may increase the weight which you give to [his/her] evidence as to the alleged sexual assault with which [the accused] is charged.

[Refer to the arguments by the Crown and arguments put in response by the defence.]

Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.

However, to meet the argument of [the accused] that [the complainant’s] evidence is [refer to the basis for allowing the evidence under s 108(3), for example fabricated to assist in Family Court proceedings] the Crown has led this evidence to show that [the complainant] did [refer again briefly to the substance of the evidence].

[Where the evidence is limited under s 136 add

You may not use the evidence of the complaint on any other basis than as affecting the credibility of the evidence given by [the complainant] in court. You must not use it as evidence that the offence occurred. It is not led for that purpose and cannot be used by you in that way. It is only relied upon by the Crown as evidence which supports [the complainant] as a witness.

[2-620] Suggested direction — delay in, or absence of, complaint

This direction must be given when evidence is given, or a question is asked, tending to suggest an absence of, or delay in, making a complaint: s 294(1). The direction must not extend to warning that delay is relevant to the complainant’s credibility “unless there is sufficient evidence to justify such a warning”: s 294(2)(c).

You have heard evidence that [the complainant] did not complain about what [he/she] claims that the accused did to [her/him] until [he/she] told [set out details of when, to whom, and nature of complaint].

[Alternatively: You have heard that [the complainant] did not make any complaint about what [he/she] claims that the accused did to [her/him].]

The delay in making a complaint about the alleged conduct of the accused [or an absence of a complaint] does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault.

[Where appropriate: You have heard evidence that [the complainant] did not complain until [he/she] did so to [specify] because [specify the explanation offered].]

[Where appropriate (that is, where the “sufficient evidence” test under s 294(2)(c) is met):

However, the delay in making a complaint [or the absence of a complaint] is a matter that you may take into account in assessing the credibility of [the complainant’s] evidence as to what [he/she] said the accused did. The accused has argued that the delay in making a complaint [or the absence of a complaint] is inconsistent with the conduct of a truthful person who has been sexually assaulted and so you should regard this as indicating that the complainant’s evidence is false. [He/she] asks you to rely upon the evidence that … [set out the evidence relied upon by the accused said to justify that the jury should use the delay in assessing the complainant’s credibility].

This is a matter which you should consider.]

[2-630] Notes

1. 

The statutory basis for the direction is found in s 294(1)–(2) Criminal Procedure Act 1986. The section is headed “Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings” which provides:

(1) 

This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest:

(a) 

an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or

(b) 

delay by that person in making any such complaint.

(2) 

In circumstances to which this section applies, the Judge:

(a) 

must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

(b) 

must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and

(c) 

must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.

Sections 294(1), (2)(a) and (b) were previously found in s 405B Crimes Act 1900 and s 107 Criminal Procedure Act. Section 294(2) was enacted to override the presumption expressed in Kilby v The Queen (1973) 129 CLR 460 at 465 that a failure of a person to complain at the earliest reasonable opportunity may be used by the jury as evidence relevant to the falsity of the complaint: Jarrett v R [2014] NSWCCA 140 at [34]. Section 294(2)(c) (added in 2007) provides the judge cannot give a warning about delay “unless there is sufficient evidence to justify such a warning”.

2. 

The addition of s 294(2)(c) significantly recasts s 294(2): Jarrett v R [2014] NSWCCA 140 at [38]. It is complemented by s 294AA (inserted at the same time) which prohibits the judge from warning a jury that complainants as a class are unreliable witnesses and that there is danger of convicting on the uncorroborated evidence of a complainant: Jarrett v R at [38]. Section 294(2)(c) restricts the circumstances in which a judge can direct a jury that the delay in, or an absence of, complaint can be taken into account in assessing the complainant’s credibility. The court in Jarrett v R at [43] held that the circumstances and the nature of the warning will vary from case to case; the test of “sufficient evidence” must be the basis of the warning and it must mould with the mandatory directions required by s 294(2)(a) and (b). In Jarrett v R at [43], Basten JA said:

Without being prescriptive, there must be something in the evidence sufficient to raise in the judge’s mind the possibility that the jury may legitimately consider that the delay could cast doubt on the credibility of the complaint. Usually, one would expect that such matters would have been put to the complainant in the course of cross-examination. Those very matters may constitute the “good reasons” why there was no timely complaint for the purposes of par (b), but, if not believed, may form the evidence justifying the warning under par (c).

An inconsistency between a complainant’s complaints is “not the basis for a direction based on delay”: Jarrett v R at [49].

[2-640] Delay in complaint and forensic disadvantage to the accused

The need to direct the jury on the forensic disadvantage occasioned to the accused as a result of delay in complaint emanates from the High Court decisions in Longman v The Queen (1989) 168 CLR 79 and later Crampton v The Queen (2000) 206 CLR 161 at [45]. The law as declared in those cases has since been substantially changed by statute as set out below.

Section 165B Evidence Act 1995

Where s 165B applies, a direction in the form of a warning regarding any forensic disadvantage to the accused is to be given under s 165B if:

(a) 

the proceedings are criminal proceedings in which there is a jury: s 165B(1). (The section applies in judge alone trials by virtue of s 133(3) Criminal Procedure Act 1986 which requires the judge to take the warnings required to be given to a jury into account: W v R [2014] NSWCCA 110 at [126]–[127], [130].)

(b) 

the court is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay: s 165B(2)

(i) 

significant forensic disadvantage includes, but is not limited to, death or inability to locate any potential witness and loss or otherwise unavailability of any potential evidence: s 165B(7)

(ii) 

delay includes delay between the alleged offence and it being reported: s 165B(6)(a)

(iii) 

significant forensic disadvantage is not established by mere passage of time by itself: s 165B(6)(b), and

(c) 

a party makes an application for the direction: s 165B(2).

In TO v R [2017] NSWCCA 12 at [167], the court (Price J; Button and Fagan JJ agreeing) provided “a summary of the effect of s 165B” with reference to the cases of Groundstroem v R [2013] NSWCCA 237 and Jarrett v R (2014) 86 NSWLR 623 at [60]–[63]:

1. 

The duty on the judge to give a direction in accordance with subsection (2) arises only on application by a party and what is said to be the particular significant forensic disadvantage must form part of the application: Groundstroem v R at [56].

2. 

Subsection (5) prohibits the judge from directing the jury “about any forensic disadvantage the defendant may have suffered because of delay” otherwise than in accordance with the section: Jarrett v R at [53].

3. 

There is a duty to inform the jury of the nature of the disadvantage and the need to take that disadvantage into account when considering the evidence, only when the judge is satisfied that the defendant has “suffered a significant forensic disadvantage because of the consequences of delay”: Jarrett at [53].

4. 

Subsection (3) provides a rider to the obligation to inform where the judge is satisfied there are “good reasons” for not taking that step: Jarrett at [53].

5. 

Subsection (4) prohibits the judge from suggesting that it would be dangerous or unsafe to convict the defendant “solely because of” the delay or the disadvantage. Otherwise, no particular form of words need be used: Jarrett at [53].

6. 

Whether there has been a significant forensic disadvantage depends on the nature of the complaint and the extent of the delay in the circumstances of the case. The extent of delay is not the test. It is the consequence of delay which is decisive: Groundstroem at [61]. The proper focus of s 165B is on the disadvantage to the accused: Jarrett at [60].

7. 

The concept of delay is relative and judgmental. Although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the exception in s 165B(3): Jarrett at [61]–[62].

8. 

If the accused is put on notice of the complaint, any failure to make inquiry thereafter will not normally constitute a consequence of the delay, but a consequence of the accused’s own inaction: Jarrett at [63].

The focus of s 165B is on the disadvantage to the accused and, unlike Longman v The Queen (1989) 168 CLR 79, there is no generalised assumption concerning the reliability of the complainant’s evidence as a consequence of the delay: Jarrett v R at [54], [60]. Section 165B(4) specifically prohibits the giving of a “dangerous to convict” Longman direction which was considered by the Parliament to be an encroachment on the fact-finding task of the jury: W v R at [125]. A failure by a party to apply for a forensic disadvantage direction does not prevent a judge giving such a direction in order to avoid a perceptible risk of a miscarriage of justice: TO v R at [181] and [183]. This is supported by the preservation of the common law under s 9(1) Evidence Act and by the text of s 165B(5) which include “… but this section does not affect any other power of the judge to give any warning to, or to inform, the jury”: TO v R at [181]–[182].

In Jarrett v R, the complainant alleged the accused, who was the father of her best friend, secured her silence by threatening suicide if she told anyone. Basten JA said at [62]:

If the trial judge had been satisfied that such a threat had been made ... that would have provided a good reason not to treat the direction as required or, if the power were engaged, a good reason for not exercising it.

Any warning given under s 165B must not infringe s 294AA(1) Criminal Procedure Act which provides, inter alia, that the judge “must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses”. This prohibition includes “a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant”: s 294AA(2). Section 165 Evidence Act is “subject to” s 294AA: s 294AA(3).

[2-650] Suggested direction — delay in complaint and forensic disadvantage to the accused

Note: The suggested direction should be modified so as to deal only with the actual and possible disadvantages encountered in the case at hand and omitting assumptions that may not be applicable.

There is a warning I must give you relating to this issue of the delay in [or absence of] any complaint being made by [the complainant].

It is most important that you appreciate fully the effects of delay [or absence of complaint] on the ability of [the accused] to defend [himself/herself] by testing prosecution evidence [or bringing forward evidence] in [his/her] own case, to establish a reasonable doubt about [his/her] guilt.

In this regard, I refer to the following specific difficulties encountered by [the accused] in testing the evidence of the prosecution [or in adducing evidence] in [his/her] own case … [these specific difficulties should be highlighted in such a way as to make it clear that delay, for which the accused had not been responsible, had created those difficulties. All additional significant circumstances require comment. These may include:

  • the delay in instituting the prosecution

  • the possibility of distortion in human recollection

  • the nature of the allegations

  • the age of the complainant at the time of the allegations having regard to the current and previous forms of ss 165A and 165B Evidence Act

  • the prosecution case is confined to the evidence of the complainant, and

  • any unusual or special features.]

These difficulties put the accused at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence, or in bringing forward evidence [him/herself] to establish a reasonable doubt about [his/her] guilt, or both.

The delay means that evidence relied upon by the Crown cannot be as fully tested as it otherwise might have been.

Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that [the complainant’s] memory for details would have been clearer. This may have enabled [his/her] evidence to be checked in relation to those details against independent sources so as to verify it, or to disprove it. [The complainant’s] inability to recall precise details of the circumstances surrounding the incident(s) makes it difficult for the accused to throw doubt on [his/her] evidence by pointing to circumstances which may contradict [him/her]. Had the accused learned of the allegations at a much earlier time [he/she] may have been able to recall relevant details which could have been used by his counsel in cross-examination of [the complainant].

Another aspect of the accused’s disadvantage is that had [he/she] learned of the allegations at a much earlier time [he/she] may have been able to find witnesses or items of evidence that might have either contradicted [the complainant] or supported [his/her] case, or both. [He/She] may have been able to recall with some precision what [he/she] was doing and where [he/she] was at particular times on particular dates and to have been able to bring forward evidence to support [him/her].

You should also take into account that because of the delay the accused has lost the opportunity to bring forward evidence from [set out specific items of evidence lost or no longer available].

Because the accused has been put into this situation of significant disadvantage [he/she] has been prejudiced in the conduct of his defence. As a result, I warn you that before you convict the accused you must give the prosecution case the most careful scrutiny. In carrying out that scrutiny you must bear in mind the matters I have just been speaking about — the fact that the complainant’s evidence has not been tested to the extent that it otherwise could have been and the inability of the accused to bring forward evidence to challenge it, or to support [his/her] defence.