Important general directions in sexual assault trials
Based on material originally compiled by her Honour Judge Helen Murrell SC; updated and adapted from the Criminal Trial Courts Bench Book, September 2018.
If a complainant reports an incident when it is still “fresh in (his or her) memory” (s 66(2) Evidence Act 1995), the report is referred to as complaint evidence. “Fresh” means “recent” or “immediate” and refers to the temporal relationship between the incident and the report, which, if “fresh”, would usually have been made a matter of hours or days, not years after the event: Graham v The Queen (1998) 195 CLR 606.
Section 66 was amended by the insertion of subs 2A in response to Graham v The Queen: see R v XY  NSWCCA 181. The amendment applies to trials commenced after 1 January 2009. In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:
(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.
Although such evidence is hearsay, it may be admitted under s 66(2) Evidence Act:
to support the complainant’s credibility, and/or
to prove the facts asserted in the complaint.
As the evidence is admitted as hearsay, a warning may be required under s 165(1)(a) Evidence 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.
Under s 136 Evidence Act, the court may limit use of the evidence to use for credit purposes only. A closely contemporaneous and spontaneous complaint will usually be admitted both to support credit and as evidence of the facts asserted: Papakosmas v The Queen (1999) 196 CLR 297. Where evidence of complaint is admitted as evidence of the facts asserted, the court should distinguish such hearsay evidence from direct evidence, that is, should state that evidence from a witness that he or she was told something is not the same as direct evidence from a witness that he or she directly observed an event.
Any complaint — including a non-contemporaneous complaint — may be admitted under s 108(3)(b) Evidence Act to restore the complainant’s credibility, either generally or in a particular respect: R v DBG (2002) 133 A Crim R 227. See Criminal Trial Courts Bench Book [2-610] for Suggested direction — evidence of complaint used to re-establish the complainant’s credit.
Complaint evidence may be excluded under ss 135 or 137 Evidence Act on the basis that it is prejudicial. However, a contemporaneous complaint will not usually satisfy the requirements of those provisions: R v BD (1997) 94 A Crim R 131.
Where there has been a delay in complaint or an absence of complaint, s 294 Criminal Procedure Act 1986 requires that the court “warn” the jury that the absence/delay does not necessarily indicate that the complainant’s allegation is false, and must inform the jury that there may be good reasons why victim of a sexual assault may hesitate to complain: s 294(2). See Criminal Trial Courts Bench Book at [2-620] for Suggested direction — delay in, or absence of, complaint.
The statutory basis for the direction is found in s 294(1)–(2) Criminal Procedure Act. The section is headed “Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings” which provides:
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:
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
delay by that person in making any such complaint.
In circumstances to which this section applies, the Judge:
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
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
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) 86 NSWLR 623 at . 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”.
The addition of s 294(2)(c) significantly recasts s 294(2): Jarrett v R at . 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 . 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  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 , 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 .
Significant delay in complaint with associated forensic disadvantage
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 . 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:
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  NSWCCA 110 at –, .)
the court is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay: s 165B(2):
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)
delay includes delay between the alleged offence and it being reported: s 165B(6)(a)
significant forensic disadvantage is not established by mere passage of time by itself: s 165B(6)(b), and
a party makes an application for the direction: s 165B(2).
In TO v R  NSWCCA 12 at , the court provided “a summary of the effect of s 165B” with reference to the cases of Groundstroem v R  NSWCCA 237 and Jarrett v R (2014) 86 NSWLR 623 at –:
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 .
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 .
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 .
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 .
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 .
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 . The proper focus of s 165B is on the disadvantage to the accused: Jarrett at .
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 –.
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 .
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 , . 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 . 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  and . 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 –.
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 :
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).
See Criminal Trial Courts Bench Book at [2-650] for Suggested direction — delay in complaint and forensic disadvantage to the accused.
Other directions about relying on the complainant’s evidence — Murray/Jovanovic/Markuleski directions
A judge must not suggest that complainants as a class are unreliable witnesses and must not “warn” the jury of “the danger of convicting on the uncorroborated evidence of any complainant”: s 294AA Criminal Procedure Act.
However, in relation to any serious crime where there is only one witness to the central events, the jury should be reminded that the critical witness’s evidence should be scrutinised with care before concluding that the accused is guilty of the crime: R v Murray (1987) 11 NSWLR 12 at .
The question “Why would the complainant lie?” should never be posed as it effectively reverses the onus of proof, suggesting that it is for the accused to explain why the complainant would make a false or mistaken allegation: R v Jovanovic (1997) 98 A Crim R 1. The jury may be informed that, even if there is no obvious plausible reason for the complainant to lie/be mistaken, they cannot reason that the complainant must therefore be telling the truth.
Where there is more than one charge, the jury’s verdicts must be logically consistent. The jury should be told that, if they have a reasonable doubt about the complainant’s evidence on any charge, then they must ask whether that doubt causes them to have a reasonable doubt about his or her evidence on the other charge/charges. As to what constitutes logically consistent verdicts, see R v Markuleski (2001) 52 NSWLR 82 and Sgardelis v R  NSWCCA 338. It may be desirable to go beyond the standard Markuleski direction and elaborate on the need for logical consistency between verdicts, with a view to averting logically inconsistent verdicts which represent a compromise by jurors.
See Criminal Trial Courts Bench Book at [5-1590] for Suggested R v Markuleski (2001) 52 NSWLR 82 direction — multiple counts.
When the Crown tenders evidence of sexual incidents which are not themselves the subject of any charge, the Crown should identify the basis of the tender. The evidence may be tendered as coincidence (similar fact) evidence, but is usually tendered:
as contextual evidence (explaining the complainant’s conduct)
as evidence of tendency (explaining the accused’s conduct), and/or in rebuttal
Contextual evidence is essential background evidence which explains the complainant’s conduct by putting the charged incident(s) into a realistic context. For example, it may explain that the charged incident(s) did not (as might otherwise appear to be the case) happen improbably or “out of the blue”.
The purpose of the evidence is to place the specific allegation(s) in the indictment in the context of the complainant’s overall allegations against the accused in order to assist the jury in understanding the particular allegation(s) in the charge(s).
See also RG v R  NSWCCA 173 at . This answers hypothetical questions that may be raised by the jury about the allegations giving rise to the charges in the indictment. It may overcome false impressions conveyed to the jury such as that the incident “came out of the blue”: KTR v R  NSWCCA 271 at  or “occurred in startling isolation”: KJS v R  NSWCCA 27 at . It may also be admitted to explain lack of complaint by the complainant: DJV v R at ; KJS v R at (v).
As to the distinction between context and tendency evidence see Qualtieri v R (2006) 171 A Crim R 463 particularly at ff which was applied in SKA v R  NSWCCA 205. In particular the evidence is not admitted to prove the guilt of the accused but may have the effect of bolstering the credit of the complainant.
As to context evidence generally, see: P Johnson “Admitting evidence of uncharged sexual acts in sexual assault proceedings” (2010) 22(10) JOB 79; Criminal Practice and Procedure NSW at [3-s 97.15]; Uniform Evidence Law at [1.3.7320]; and The New Law of Evidence at 95.1.
See Criminal Trial Courts Bench Book [4-215] for Suggested direction — context evidence.
Criminal Trial Courts Bench Book [4-200]ff for Tendency, coincidence and background evidence.
The admission of tendency evidence is governed by Pt 3.6 Evidence Act. It requires two preconditions: (a) the giving of notice and (b) that the evidence has “significant probative value”.
The requirement to give notice was considered in R v Gardiner (2006) 162 A Crim R 233 at , Bryant v R (2011) 205 A Crim R 531 and Bangaru v R  NSWCCA 204 at  where the tendency of the accused was not specified. See also R v AC  NSWCCA 130 at ff. As to dispensing with the requirement of notice for the tendering of tendency evidence, see s 100 and R v Harker  NSWCCA 427.
As to the admissibility of evidence under s 97 see The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; IMM v The Queen (2016) 257 CLR 300 and Hughes v The Queen (2017) 344 ALR 187. Tendency evidence should be distinguished from coincidence evidence: R v Nassif  NSWCCA 433.
In determining the probative value of evidence for the purposes of ss 97(1)(b) and 137, a trial judge should assume the jury will accept the evidence and, thus, should not have regard to the credibility or reliability of the evidence: IMM v The Queen at –, , ; The Queen v Bauer at .
For evidence to be admissible as tendency it is not necessary that it exhibit an “underlying unity”, “a modus operandi” or a “pattern of conduct”: Hughes v The Queen at  approving the approach in R v Ford (2009) 201 A Crim R 451, R v PWD (2010) 205 A Crim R 75, Saoud v R (2014) 87 NSWLR 481 and disapproving Velkoski v R (2014) 45 VR 680 at 682. Depending upon the issues in the trial, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it: Hughes v The Queen at . Section 97(1) does not condition the admissibility of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. Commonly there may be a similarity between the tendency asserted and the offences charged: Hughes v The Queen at .
The test posed by s 97(1)(b) is whether the disputed evidence, together with other evidence, makes significantly more likely any facts making up the elements of the offence charged: Hughes v The Queen at . In the case of multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible: Hughes v The Queen at .
In child sexual assault trials, it is common for the complainant’s account to be challenged on the basis that it is fabricated. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded: Hughes v The Queen at .
Matters that must be considered under s 97
In assessing whether evidence has significant probative value in relation to each count, two interrelated but separate matters must be considered: first, the extent to which the evidence supports the tendency; and, second, the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but of whether an offence was committed, it is important to consider both matters: Hughes v The Queen (2017) 344 ALR 187 at . Therefore, there is likely to be a high degree of probative value where: (i) the evidence, alone or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged: Hughes v The Queen at . Unlike the common law preceding s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant. However, the open-textured nature of an enquiry into whether “the court thinks” that the probative value of the evidence is “significant” means it is inevitable that reasonable minds might reach different conclusions: Hughes v The Queen at ; The Queen v Bauer (2018) 92 ALJR 846 at .
Prejudicial effect of tendency evidence
If the evidence is admissible under s 97, it must then satisfy s 101, which is concerned with balancing its probative value against its prejudicial effect. In The Queen v Bauer (2018) 92 ALJR 846 at , the High Court described the expression “prejudicial effect” in s 101 [and “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137] as conveying the idea of harm to an accused’s interests by reason of a risk the jury would use the evidence improperly in some unfair way. As to the application of that section see R v Ellis (2003) 58 NSWLR 700 and Hughes v R  NSWCCA 330 at –. In Hughes v The Queen (2017) 344 ALR 187 at , the High Court articulated how tendency evidence may occasion prejudice to an accused: The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years. In determining the prejudicial effect that evidence may have on an accused, it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may reduce the prejudicial effect: Mol v R  NSWCCA 76 at ; DAO v R (2011) 81 NSWLR 568 at . It is important that the prejudice to a defendant be specifically identified for the purposes of the weighing exercise required by s 101 and in considering appropriate directions: BC v R  NSWCCA 327 at –; Mol v R at .
Concoction and contamination
Generally, a court is not required to assess the risk of joint concoction as part of the test in s 97(1)(b): The Queen v Bauer (2018) 92 ALJR 846 at ; Abbott (a pseudonym) v R  NSWCCA 149 at . The High Court in The Queen v Bauer (2018) 92 ALJR 846 at - held that under the Evidence Act, provided the evidence is rationally capable of being accepted by the jury, the possibility of contamination, concoction or collusion should be assessed by the jury as part of its assessment of factors that may affect the credibility and reliability of the evidence: see also IMM v The Queen (2016) 257 CLR 300 at ; Jones v R  NSWCCA 280 at –; DJW v R  NSWCCA 164 at –); McIntosh v R  NSWCCA 184; Hughes v R  NSWCCA 330 at –, –. Unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, determining the probative value of the evidence excludes consideration of credibility and reliability: The Queen v Bauer at ; Hughes v R (above) at ; Jones v R at –; McIntosh v R at –.
Standard of proof
There is no requirement under the Evidence Act that an accused’s tendency must be proved beyond reasonable doubt. In The Queen v Bauer (2018) 92 ALJR 846, the High Court stated that juries should not ordinarily be directed that they could not act on evidence of uncharged acts unless they were satisfied those acts were proved beyond reasonable doubt: at . The suggested direction for tendency evidence does not require that the tendency be proved beyond reasonable doubt. However, it was apparent in The Queen v Bauer that the High Court envisaged a direction in those terms may be necessary if there was a significant possibility of a jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt: at . If a trial judge forms a view that it should be proved to that standard, the direction should be amended. The tendency evidence may arise from the charges in the indictment, in that the joinder of the charges was based upon the admissibility of each of the charges as evidence of a tendency in respect of each of the other charges. In such a case the suggested direction will need to be amended. A direction as to the use of tendency evidence should be given as soon as the evidence is tendered and again in the summing up: Qualtieri v R (2006) 171 A Crim R 463 at .
Directions in a single complainant sexual offences case
In the course of its reasons in The Queen v Bauer, above, the High Court set out, at , the following directions which should ordinarily be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence the accused had a sexual interest in the complainant and a tendency to act upon it:
The trial judge should direct the jury that the Crown argues the evidence establishes the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely the accused committed the charged offence/s.
If the Crown also relies on the evidence as putting the charged offence/s in context in some other identified fashion or respects, the jury should be further directed that the Crown contends the evidence also serves to put the charged offence/s in context and identify the manner or respects in which the Crown contends it does so.
The trial judge should stress the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to them to use the evidence in those ways but no other.
However, the trial judge should further stress that it is not enough to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all the evidence relevant to the charge they are satisfied of the accused’s guilt of that offence beyond reasonable doubt.
See Criminal Trial Courts Bench Book [4-227] for Suggested direction — tendency evidence and [4-232] Suggested direction — tendency evidence in child sexual assault case.