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Sex offences - defence - recent complaint

Changes to the Evidence Act 1935 – Sexual Offence Trial Procedure[1]

 

Michael Woods and Co is a specialist criminal defence law firm. We act for many persons charged with sexual offences including rape, unlawful sexual intercourse, offences involving allegations of paedophilia and possession of child pornography and indecent assault.

 

We at Michael Woods and Co are aware of recent changes to the laws of evidence and procedure that affect those charged with sexual offences that plead not guilty and proceed to trial.

 

On 23 November 2008 the South Australian Parliament enacted several changes to the law which affect sexual offences legislation and criminal trial procedures and evidence admissibility.

 

Of these changes was a significant change relating to the admissibility of evidence of recent complaint in sexual offence matters. This change is applicable from 23 November 2008 in trials in South Australian Courts.

 

Recent complaint evidence in a sexual offence matter is an out of court statement made by a complainant (victim) to another person informing them of  being sexually assaulted. Such a complaint is made soon after the assault.

 

Prior to 23 November 2008 such evidence was admissible if it was made at the first reasonable opportunity by the complainant. It was admissible to show consistency in the complainant’s version of events. Delay in making the complaint could be highlighted as relevant to the credibility of the complainant. In such matters a Judge was required to warn a jury that delay does not lead to the conclusion that the complaint is false per section 34i(6a) Evidence Act.

 

Changes to the Evidence act as of 23 November 2008 now abolishes the law of recent complaint per section 34M Evidence Act. The law now states that the first complaint, made by a complainant, is admissible as evidence. It is now admissible whenever it was made and there is no requirement that it be ‘recent’. It also includes situations where the complaint makes an initial complaint and then at a later time elaborates on the incident.

 

Under the new legislation a Judge must direct a jury of the following;

1. That the evidence is admissible as evidence to enlighten the jury as to how the allegation came to light.
2. That the evidence is admissible as evidence of consistency of the complainants conduct.
3. That the evidence is not evidence of the truth of the matter and was just what was said.
4. That there may be many reasons why the complainant made the complaint at the time that they did
5. That there may be many reasons why the complainant made the complaint to the particular person
6. That the jury must determine themselves the significance (if at all) of the evidence

 

The legislation does not require the judge to make any direction or comment as to if delay in making the complaint is in itself relevant to the complainants credibility.

 

Part of the rationale of the rule of recent complaint required the complaint to be volunteered by the complainant and made at the first opportunity.  These precautions in some ways assisted a court to know that a complaint that had these characteristics was more likely to have the potential to bolster the complainants credibility.  It was never led to prove the truth of the complaint, only to show consistency in the complainants behaviour. 

At Michael Woods & Co we are concerned that complaints which are made well after the event will have much less weight in establishing the very principle that allowed the evidence to be led.  A complaint made well after an event cannot have the same spontaneity as one made at the first opportunity after the event.  Likewise one made later has may not be as reliable if the event is older and if the a chance or motive to concoct or collaborate has arisen.  Further, historically, a person who complains many times about an incident is not necessarily any more reliable than a person who makes a single complaint.  Evidence which suggests that a person said something before and is now saying the same is not normally allowed and is considered inadmissible because a witness is ‘pulling themselves up by their own bootstraps’.  We are concerned at Michael Woods & Co that the new legislation may give rise to a jury making an improper use of the fact that a complaint was made.  The pulling up by the bootstraps has the potential to end in a solid kick up the bum for an accused person.

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