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Criminal Law in Solomon Islands |
Table Of Contents
[44.0] |
Introduction |
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[44.1] |
Dates Of Offences |
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[44.2] |
Corroboration |
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[44.2.1] Introduction |
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[44.2.2] Need For Corroboration |
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[44.2.3] Circumstances Amounting To Corroboration |
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[A] Fresh Complaint |
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[B] Distressed Condition |
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[C] Community Turning In Suspects |
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[D] Location & Circumstances |
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[E] Medical Evidence |
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[F] Accomplices |
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[G] Lies Of Defendants |
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[H] Flight Of Defendants |
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[I] Admissions |
[44.3] |
Complainant / Prosecutrix Failure To Give Evidence |
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[44.4] |
Evidence Of Sexual Relationship |
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[44.4.1] Introduction |
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[44.4.2] With Defendant |
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[44.4.3] With Other Persons |
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[44.5] |
Closed Court |
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[44.6] |
Young Complainants |
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[44.6.1] Introduction |
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[44.6.2] Need For Corroboration |
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[44.6.3] Erection Of Screens |
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[44.7] |
Proof Of Age |
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[44.8] |
Similar Fact Evidence |
[44.0] Introduction
This chapter will examine issues which relate to 'offences of a sexual nature'.
[44.1] Dates Of Offences
A specific date of offences of a sexual nature may be difficult to prove:
· if the complainant is young; and / or
· when it is alleged that multiple offences have occurred.
Therefore, the prosecution must be particularly careful when alleging the date of such offences. The law relating to the 'Dates Of Offences Generally' is examined commencing on page 85.
In S v R (1989) 64 ALJR 126 the High Court of Australia held that defendants are entitled to know precisely the offences for they are charged. It was held per Dawson J at pages 129 – 130:
'Each indictment charged only one offence and gave rise to no duplicity. Had the evidence revealed only one offence in each of the years in question [, as specified in the indictments,] there could have been no complaint about the form of the indictment.
But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this there was what has been called a "latent ambiguity" in each of the counts […]. That ambiguity required correction if the applicant was to have a fair trial.' (emphasis added) [words in brackets added]
The correction required would have amounted to the prosecution identifying the specific offence which related to each count or charge.
The law relating to 'Joinder Of Charges' is examined commencing on page 91.
[44.2] Corroboration
[44.2.1] Introduction
What is corroboration? Corroboration is independent evidence which affects the accused by connecting him/her with the crime. It must be evidence that implicates him/her, that is, which confirms in some material particular not only the evidence that the offence had been committed, but also that the defendant committed it, see James v R (1971) 55 CrAppR 299 at page 302.
In Peter Townsend v George Oika [1981] PNGLR 12 Greville Smith J, as a member of the Supreme Court, stated at page 19:
'In the English edition of Cross on Evidence (4th ed., 1974), pp. 184, 185, the learned author says as follows:
"'Corroboration' is not a technical term, it simply means 'confirmation' or 'support'. But, in all cases in which it is required in law or practice, it must take the form of a separate item of evidence implicating the person against whom the testimony is given in relation to the matter concerning which corroboration is necessary. This means that many things that show, or might be though to show, that a witness is speaking the truth do not corroborate him in law."'
In R v Baskerville (1916) 12 CrAppR 81 [[1916] 2 KB 658] Lord Reading CJ stated at page 91 that 'corroboration' must be:
'Independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is which confirms some material particular not only the evidence that the crime has been committed but also that the defendant committed it.'
R v Olaleye (1986) 82 CrAppR 337 Watkins LJ, delivering the judgment of the Court, stated at page 340:
'Lord Morris of Borth-y-Gest in DIRECTOR OF PUBLIC PROSECUTIONS v HESTER (1973) 57 CrAppR 212, 229; [1973] AC 296, 315 [… stated:] "The essence of corroborative evidence is that one creditworthy witness confirms what another creditworthy witness has said … The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible …"
If complainant's evidence is, in the minds of the jury, unbelievable, corroboration is valueless. It is only when, in giving it, she is believable, that corroboration can have the effect of confirming or supporting what she has said. If it had that effect, the jury is fortified in accepting the complainant as a reliable and trustworthy witness.'
In R v Willoughby (1988) 89 CrAppR 91 Saville J, delivering the judgment of the Court, held at page 94:
'In such a case as the present, where the crime but not the involvement of the defendant is admitted, there is of course no need for corroborative evidence that the crime has been committed, for there is nothing suspect from the witness in that regard. What is then needed is independent evidence corroborating any testimony of the suspect witness with regard to identity. Conversely, where the involvement of the defendant, but not the crime, is admitted (eg. On a charge of rape where consent is in issue), the need is for independent evidence corroborating any testimony of the suspect witness that the crime was committed. If neither the crime nor the involvement of the defendant is admitted, then the independent evidence, to amount to corroboration, must be such as to show or tend to show that the testimony of the suspect witness with regard to those matters is reliable.'
In Hunt (1994) 76 ACrimR 363 Fitzgerald P of the Queensland Court of Appeal observed at page 364:
'Corroboration is defined in evidentiary terms. Evidence accepted by the jury from a source other than the complainant (or other witness whose evidence is to be corroborated) must make "more probable" the complainant's evidence that the offence was committed and that the accused was the offender: Doney (1990) 171 CLR 207 at 211; 50 ACrimR 157 at 159.
On analysis, the requirement that the evidence from one source make other evidence from another source "more probable" is concerned with the matters to which the evidence relates. The matter established from a source other than the complainant must make "more probable" the matters to which the complainant's evidence materially relates, ie., that the offence was committed and that the accused was the offender.' (emphasis added)
In R v Sakail [1993] 1 QdR 312 Macrossan CJ, with whom the other members of the Court of Criminal Appeal concurred, stated at page 317:
'Circumstantial evidence can constitute corroboration: R v Baskerville [1916] 2 KB 658 and R v May [1962] QdR 456. The courts have stated on numerous occasions that in looking for corroboration the search is not for complete independent proof of the matters charged, that is for evidence sufficient, if it stood alone, to prove the Crown case. It may indeed amount to this, but corroboration may consist of no more than "confirmation from some other source that the suspect witness is telling the truth in some part of his story which goes to show that the accused committed the offence which he is charged" per Lord Diplock in R v Hester [1973] AC 296. See also the reasons in the same case of Lord Morris at 315 and Lord Pearson at 321, and R v Baskerville at 664 and R v May.'
In R v Hills (1988) 86 CrAppR 26 Lord Lane CJ, delivering the judgment of the Court, stated at pages 30 – 31:
'Corroboration is not infrequently provided by a combination of pieces of circumstantial evidence, each innocuous on its own, which together tend to show that the defendant committed the crime. For example, in a rape case, where the defendant denies he ever had sexual intercourse with the complainant, it may be possible to prove (1) by medical evidence that she had had sexual intercourse within an hour or so prior to the medical examination, (2) by other independent evidence that the defendant and no other man had been with her during that time, (3) that her underclothing was torn and that she had injuries to her private parts. None of those items of evidence on their own would be sufficient to provide the necessary corroboration, but the judge would be entitled to direct the jury that if they were satisfied so as to feel sure that each of those three items had been proved, the combined effect of the three items would be capable of corroborating the girl's evidence.
In Director of Public Prosecutions v Kilbourne (1973) 57 CrAppR 381, 409, [1973] AC 729, 750 Lord Reid said:
"There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in."
[…]
It is therefore always important to consider: (1) what are the real issues in the case; (2) what the evidence being put forward as corroboration does in fact prove. The proof may of course come from several sources, and in that sense corroboration may be cumulative as already illustrated; (3) whether that evidence: (a) comes from a source or sources independent of the accomplice; (b) goes some significant part of the way towards showing that the offence was committed and that the accused committed it.'
See also: R v Chance (1988) 89 CrAppR 398; R v Sailor [1994] 2 QdR 342 at page 344 & The State v Stuart Hamilton Merriam [1994] PNGLR 104 at page 12.
The test to be applied in respect of cases based solely on circumstantial evidence, ie., where there are no admissions, must be that the only rational inference open to the Court to find in the light of the evidence must be that the defendant intended to commit the alleged offence, see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22).
Such circumstances may include:
· evidence of a 'fresh complaint', although such evidence alone does not amount to corroboration, see Director of Public Prosecutions v Kilbourne (1973) 57 CrAppR 381 at page 403 [[1973] AC 729; [1973] 2 WLR 254; [1973] 1 AllER 440; [1973] CrimLR 235]; and / or
· evidence of the 'distressed condition' of the complainant / prosecutrix; and / or
· evidence in respect of 'Leaders and people from a community turning in a defendant'; and / or
· evidence in respect of the 'location and circumstances' of the alleged offence; and / or
· 'medical evidence'; and / or
· evidence of 'accomplices'; and / or
· evidence that proves that the defendant 'lied' in respect of the alleged offence; and / or
· evidence of 'flight', ie., when a defendant leaves the location of the alleged offence for no apparent reason.
Those circumstances are examined commencing on page 673.
The law relating to 'Circumstantial Evidence' is examined commencing on page 183.
[44.2.2] Need For Corroboration
It is not necessary that every fact spoken to by the complainant should be corroborated, see R v Goulding (1908) 1 CrAppR 121 at page 124.
In R v Wilson Iroi (Unrep. Criminal Case No. 17 of 1991) Muria J stated at page 5:
'On the question of corroboration, I warn myself of the danger of convicting the accused on the uncorroborated evidence of the complainant. It has been a well settled rule that has the force of law that in cases of sexual nature it is dangerous to convict on the testimony of a complainant alone. However if after considering this warning most carefully the court is completely sure that the complainant is telling the truth it may convict on the evidence of the complainant alone: R v Gere (1980/81) SILR 145.'
In R v Gere [1980 – 81] SILR 145 Daly CJ stated at pages 145 – 146:
'Before I turn to the details the allegation I must remind myself of two important matters of law. The first is that the burden of proof of all elements of the charge is on the prosecution. Before I can convict the accused the prosecution must make sure that he is guilty. The second is that this is a complaint of a sexual nature made by a 16 year old girl. I must therefore give myself a strong warning of the dangers of convicting an accused on the testimony of such a complainant in the absence of what I prefer to call supporting evidence. That is evidence from a source independent of the complainant which supports her account as to the matters in dispute. I must look carefully for such evidence. However even if I find there is no such supporting evidence if, after considering the warning I have given myself most carefully, I am completely sure that the complainant is telling the truth then I may nevertheless convict on her evidence alone.' (emphasis added)
Refer also to the law relating to the 'Evidence Of Young Complainants' commencing on page 699.
In R v Selwyn Sisiolo (Unrep. Criminal Case No. 5 of 1998) Lungole – Awich J stated at pages 3 – 4:
'In rape cases, as in other sexual cases, the court has to take special care to ensure that the testimony of a complainant is safe. Usually the court does that by looking for corroboration in other testimonies or other sources of evidence. It is, however, not a requirement, but the court, if acting on the complainant's uncorroborated testimony, must warn itself of the danger of convicting without corroboration. The evidence to be corroborated is about the sexual intercourse, which is, penetration, and about the absence of consent. In this case it is only the absence of consent that the court is to consider whether it has been corroborated or can be relied upon without corroboration. Accused has admitted having had sexual intercourse with the complainant on both occasions at Naha. I proceed to assess the total evidence in the case bearing in mind that rule of practice that requires me to look for corroboration of absence of consent, although I may act on uncorroborated testimony, if I am mindful of the danger and still consider the uncorroborated testimony safe to act on.'
In Lanemua v R (Unrep. Criminal Case No. 27 of 1992) Palmer J stated at page 4:
'The danger of convicting on uncorroborated evidence in sexual offences cannot be minimised.
In R –v- Henry and Manning (1969) 53 CrAppR 150, per Lord Justice Salmon at page 153 he said:
"What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated fro all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all. The judge should then go on to tell the jury that, bearing that warning well in mind, they have to look at the particular facts of the particular case and if, having given full weight to the warning, they come to the conclusion that in the particular case the woman or girl without any real doubt is speaking the truth, then the fact there is no corroboration matters not at all; they are entitled to convict."
The above comments are applicable to this case although they were directions to a jury. The direction or warning that a magistrate who is judge of fact and law should consider is not minimised. It is the same.
In R –v- Gammon (1959) 43 CrAppR 155 at page 160, the same caution is brought out.
"It is always the duty of the tribunal in offences of this nature to invite the jury to look for corroboration and to warn them that they should be careful not to convict in the absence of corroboration unless the evidence completely satisfies them of the guilt of accused."
In the present case the magistrate warned himself as follows:
"As a matter of practice, I remind myself of the danger of convicting in offences of sexual nature without corroborative evidence."' (emphasis added)
The Court should specify what evidence it is relying on as corroborative evidence, see R v Goddard & Goddard (1962) 46 CrAppR 456.
See also: William Tebounapa v R (Unrep. Criminal Appeal Case No. 2 of 1999; Court of Appeal; at page 5); R v Taku (Unrep. Criminal Case No. 36 of 1987; Ward CJ; at page 3); R v Elizer Mezer (Unrep. Criminal Case No. 12 of 1990; Ward CJ; at page 2); R v Okea & Kenikaesia (Unrep. Criminal Case No. 5 of 1991; Ward CJ; at pages 3 & 4); R v Ensor [1989] 2 AllER 586; [1989] 1 WLR 497; [1989] CrimLR 562; (1989) 89 CrAppR 139; R v Midwinter (1971) 55 CrAppR 523 & R v Burgess (1956) 40 CrAppR 144.
[44.2.3] Circumstances Amounting To Corroboration
[A] Fresh Complaint
Ideally, a 'fresh complaint' is recorded:
· in the 'first person', ie., the actual words spoken and not a summary, ie., the third person. The person who took the 'fresh complaint' should also say what he/she said in the 'first person'; and
· as soon as possible after the making of the complaint.
Furthermore, more than one person may take a 'fresh complaint'.
The following is a summary of the principles examined in this subsection:
· A 'fresh complaint' is a 'complaint' made by a complainant / prosecutrix regarding an offence of a sexual nature and not necessarily rape, and it is of course, hearsay evidence, see The State v Michael Rave, James Maien & Philip Baule [1993] PNGLR 85;
· The purpose of the admissibility of a 'fresh complaint' is to support the consistency of the conduct of the complainant / prosecutrix with the story told by her in the witness box, particularly as regards the issue of consent, see The State v Stuart Hamilton Merriam [1994] PNGLR 104 at page 110; Peter Townsend v George Oika [1981] PNGLR 12; Jones v R (1997) 143 ALR 52; Suresh v R (1996) 16 WAR 23; R v Robertson, Ex parte Attorney – General [1991] 1 QdR 262; (1990) 45 ACrimR 408;
· A 'fresh complaint' may be given in evidence, not as 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, see R v Norton [1910] 2 KB 496; (1910) 5 CrAppR 7; R v Whitehead [1929] 1 KB 99; (1930) 21 CrAppR 23 & Peter Townsend v George Oika [1981] PNGLR 12.
· Evidence of a 'fresh complaint' is not an essential matter of proof to be proved in a sexual offence, see The State v Michael Rave, James Maien & Philip Baule [1993] PNGLR 85;
· Evidence of a 'fresh complaint' is admissible whether or not consent is an issue, provided it relates to an offence of a sexual nature, see R v Robertson, Ex parte Attorney – General [1991] 1 QdR 262; (1990) 45 ACrimR 408;
· Offences of a sexual nature for which the evidence of a 'fresh complaint' is admissible involve both male and female complainants, see R v Valentine [1996] 2 CrAppR 213; Camelleri v R [1922] 2 KB 122; (1922) 16 CrAppR 162; The State v Stuart Hamilton Merriam [1994] PNGLR 104 at page 111; The State v Bikhet Ngurares Paulo [1994] PNGLR 335 & R v Thomas Atu (1988) 10 QLR 23;
· To constitute a 'fresh complaint' a complainant / prosecutrix does not necessarily have to 'complain', but may simply say what occurred, see R v Robertson, Ex parte Attorney – General [1991] 1 QdR 262; (1990) 45 ACrimR 408;
· A 'fresh complaint' generally should not be made as a consequence of the complainant / prosecutrix being prompted by a question of a leading or suggestive nature, as it should have been made voluntary and spontaneous, see The State v Stuart Hamilton Merriam [1994] PNGLR 104 at page 110; Bernard Touramasong & others v The State [1978] PNGLR 337 & R v Robertson, Ex parte Attorney – General [1991] 1 QdR 262; (1990) 45 ACrimR 408;
· Evidence of a 'fresh complaint' does not amount to corroboration because it is based on what the complainant / prosecutrix says and not on material evidence independent of the evidence of the complainant / prosecutrix, see Peter Townsend v George Oika [1981] PNGLR 12 & Suresh v R (1996) 16 WAR 23;
· The fact that no 'fresh complaint' was made is not evidence of consent, see The State v Stuart Hailton Merriam [1994] PNGLR 104 at pages 111 – 112; Birch v The State [1979] PNGLR 75 & Bernard Touramasong & others v The State [1978] PNGLR 337;
· To be admissible a 'fresh complaint' must be made at the earliest opportunity, according to the circumstances of the case, see R v Cummings [1948] 1 AllER 551; R v Valentine [1996] 2 CrAppR 213; The State v Stuart Hamilton Merriam [1994] PNGLR 104 at page 110; Birch v The State [1979] PNGLR 7; R v W [1996] 1 QdR 573; Suresh v R (1996) 16 WAR 23 & R v Robertson, Ex parte Attorney – General [1991] 1 QdR 262; (1990) 45 ACrimR 408;
· Evidence of a 'fresh complaint' is not admissible if the complainant / prosecutrix fails to give evidence in court, depending on the age and availability of the complainant / prosecutrix, see R v Norton [1910] 2 KB 496; (1910) 5 CrAppR 7; Ugle v R (1989) 167 CLR 647; (1989) 88 ALR 513; (1989) 43 ACrimR 446; and
· 'Where the prosecutrix goes into the witness box and tells her story, evidence of a complaint made by her can be given although she cannot herself remember what she said', see R v Braye – Jones [1966] QdR 296.
In R v Valentine [1996] 2 CrAppR 213 Roch LJ, delivering the judgment of the Court of Appeal, stated at pages 220 - 221:
'The leading authority on complaints in cases of sexual offences is Lillyman [1896] 2 QB 167, the judgment of the Court of Crown Cases Reserved being delivered by Hawkins J. At p. 170 of the report Hawkings J stated that such evidence:
"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 not be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency … 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."
[…]
In Lillyman's case the principal issue was whether the whole of the alleged complaint should be placed before the jury or whether the evidence should be limited to the bare fact that a complaint had been made.
The court was not considering what amounted to a reasonable time after the fact. In that case the complainant, a girl under the age of 16, complained to her mistress, in the absence of the defendant very shortly after the commission of the acts charged against the defendant. The prosecution were permitted by the trial judge, Hawkins J., to lead evidence from the girl and from her mistress not merely of the fact of the complaint but the details of the complaints made. Further the decision in Lillyman established that evidence of recent complaint was admissible in cases of sexual offences other than rape.
In Osborne [[1905] 1 KB 551] it was decided that evidence of recent complaint could be given in a case where consent was not an issue by virtue of the complainant being under the age of consent. In Osborne, Ridley J. cited a passage from Hale's Pleas of the Crown, namely:
"'For instance, if the witness be of good fame, if she presently discovered the offence, made pursuit after the offender, shewed circumstances and signs of the injury … these and the like are concurring evidences to give greater probability to her testimony, when proved by others as well as herself. But on the other side, if she concealed the injury for any considerable time after she had opportunity to complain, … and she made no outcry when the fact was supposed to be done, when and where it is probable she might be heard by others; these and the like circumstances carry a strong presumption, that her testimony is false or feigned.'"
Ridley J. observed:
"We think these words may be adopted as stating the law accurately, and they indicate that these complaints are to be admitted, not only because they bear on the question of consent, but also because they bear on the probability of her testimony in a case in which, without such or other corroboration, reliance might not be placed on her testimony."
It is to be observed that this passage from the judgement suggests that a late complaint could be given in evidence as being relevant to the complainant's credibility at the instigation of the defence, as being favourable to their case.
At the end of the judgement in that case Ridley J. said:
"We are, at the same time, not insensible of the great importance of carefully observing the proper limits within which such evidence should be given. It is only to cases of this kind that the authorities on which our judgement rests apply; and our judgement also is restricted to them. It applies only where there is a complaint not elicited by questions of a leading and inducing or intimidating character, and only when it is made at the first opportunity after the offence which reasonably offers itself. Within such bounds, we think the evidence should be put before the jury, the judge being careful to inform the jury that the statement is not evidence of the facts complained of, and must not be regarded by them, if believed, as other than corroborative of the complainant's credibility, and, when consent is in issue, of the absence of consent."
The decision in Osborne established the basic criteria for determining which complaints were admissible and which were not. Subsequent cases provide illustrations of the development of the law in this field, for it must be recognised that the trend has been to widen the scope of complaints which are to be admitted in evidence. […]
[…]
A more recent authority is Cummings [1948] 1 AllER 551, where the complainant alleged that she had been raped during an evening by Cummings. […].
[…] In the course of giving the judgment of the Court of Criminal Appeal Lord Goddard CJ said at p. 552:
"Who is to decide whether the complaint is made as speedily as could reasonably be expected? Surely it must be the judge who tries the case. There is no one else who can decide it. The evidence is tendered, and he has to give a decision there and then whether it is admissible or not. It must, therefore, be a matter for him to decide and a matter for his discretion if he applies the right principle. There is no question here that Hallett J did apply the right principle. Whether it was reasonable to expect the prosecutrix to complain the moment she got back to the Camp to a man she hardly knew, or whether it was more reasonable that she should wait till the morning and complain to Mrs Watson, her friend, were matters that the learned judge had to take into account. He did take them into account, and he come to the conclusion that in the circumstances the complaint next morning was in reasonable time. If a judge has such facts before him, applies the right principle, and directs his mind to the right question, which is whether or not the prosecutrix did what was reasonable, this Court cannot interfere."
We accept that passage as a correct statement of the law and of the approach of this Court to a trial judge's ruling on the admissibility of complaints in cases of sexual offences.
The authorities establish that a complaint can be recent and admissible, although it may not have been made at the first opportunity which presented itself. What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so. It is enough if it is the first reasonable opportunity. Further, a complaint will not be inadmissible merely because there has been an earlier complaint, provided that the complaint can fairly be seen to have been made as speedily as could reasonably be expected. This is not to say that it is permissible to allow the Crown to lead evidence that the same complaint has been made by the complainant in substantially the same terms on several occasions soon after the alleged offence, where that would be prejudicial in that it might incline the jury to regard the contents of individual complaints as evidence of the truth of what they assert. The complaint has to be made within a reasonable time of the alleged offence and on the first occasion that reasonably offers itself for the complainant concerned to make the complaint that was made in the terms in which it was made.
We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family.' (emphasis added)
In The State v Stuart Hamilton Merriam [1994] PNGLR 104 Sakora J, sitting alone, stated at pages 110 – 111:
'But it does not necessarily follow that the lack or absence of complaint must be evidence of consent. The two English cases of R v Lillyman [1896] 2 QB 167 at 170 and Sparks v R [1964] AC 964 at 979 establish the principle that 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.
[…]
[…] So the requirement in sexual offences is only that the complaint be made voluntarily and at the first opportunity reasonably afforded.
The complaint is admissible into evidence as an exception to the hearsay rule only for either or two purposes:
1. to confirm evidence of the complaint relating to the evidence, and / or
2. to rebut or disprove consent on the part of the complainant, if that is an issue in the case.
Whether the complaint was "recent" or not is a question of fact and degree in every case. Certainly, it was not necessary that it was made within the comparatively short period required for admissibility under the res gestae (contemporaneity) rule.
On the other hand, complaint must have been made at the first opportunity which reasonably presented itself. Thus, it is not a question of the length of time per se. Applying this to the case here – where we are concerned with the rape of an adult female – the rule becomes more insistent and crucial, as a safeguard against concocted self-serving complaints. Also, it is some guarantee that the complaint has at least some value as evidence of the matters in respect of which it is admissible. For the same reason, it is a requirement that the complaint must have been voluntary and spontaneous.' (emphasis added)
The law relating to 'Res Gestae' is examined commencing on page 179.
In The State v Michael Rave, James Maien & Philip Baule [1993] PNGLR 85 Doherty J, sitting alone, stated at page 92:
'Fresh complaint is not an essential element to be proved in a sexual offence […The evidence of the person giving evidence of the fresh complaint …] is, of course, hearsay, but it is indicative of a consistency in the story.' (emphasis added) [words in brackets added]
The law relating to 'Hearsay Evidence' is examined commencing on page 176.
In R v Robertson; Ex parte Attorney – General [1991] 1 QdR 262; (1990) 45 ACrimR 408 the Court of Criminal Appeal held that the evidence of 'fresh complaint' was admissible equally whether or not consent was in issue on the offence charged.
Kelly SPJ stated at pages 263 & 409 respectively:
'In my view it is apparent from the way in which the basis of admissibility is expressed that there is no reason to limit the admissibility of such evidence to cases in which consent or non – consent is an issue […].'
In R v Thomas Atu (1966) 10 QLR 23 the Court examined whether the evidence of a 'fresh complaint' was admissible in respect of offences of a sexual nature involving male complainants. McGuire J, sitting alone, stated at page 26:
'There appears to be a limited number of reported cases on the matter. In R v Camelleri [1922] 2 KB 122 the English Court of Criminal Appeal was concerned with sexual offences against boys aged 12 and 15. Evidence of recent complaint had been received at the trial. It was argued that such evidence was wrongly received as the rule about the reception of evidence of recent complaint related only to females.
In a short judgment the Lord Chief Justice said (at 124):
"The question is, Does the principle in Osborne's case apply here? In Lillyman's case consent was essential to the defence, but that is not so in Osborne's case. Beatty v Cullingworth [1905] 1 KB 551 seems to limit the exception to cases of females, but there the true antithesis is between sexual and non – sexual offences (not between female and male). Really, till now the question of today has not been substantially considered, and we see no reason why in this case either the fact or the contents of the boy's complaint should not be admitted. […]"
[…]
[…] It seems to me, on principle, that no distinction should be drawn between male and female complainants […].' (emphasis added)
In R v Robertson, Ex parte Attorney – General [1991] 1 QdR 262; (1990) 45 ACrimR 408 Carter J, with whom Kelly SPJ concurred, stated at pages 276 and 421 respectively:
'The second ground for rejecting the evidence [of 'fresh complaint'] was that what the young girl had said to her mother was not a "complaint" in that it was not expressed as a grievance or an accusation but rather was merely the recitation by her of what the accused had done to her. […I]t seems to me that it matters not the form of words chosen or the tone of voice in which they are uttered might be more properly described as narrative rather than the making of an accusation or the ventilation of a grievance. What is important is what is said because there must be consistency between what is said shortly after the event and what is said in court from the witness box […].'
At pages 263 & 409 respectively Kelly SPJ also stated:
'I would not consider that for […] evidence [of 'fresh complaint'] to be admissible it is necessary that it be a "complaint" in the sense of its being an expression of a grievance or accusation as distinct from being a mere narrative. What is said may be no more than an assertion of what occurred, but provided that this is done at the first reasonable opportunity after the event alleged to constitute the offence and is not said in answer to a question of a leading or suggestive character it can nonetheless be a "complaint" for this purpose. In my view insofar as De B v De B [1950 VLR 242 might be regarded as authority to the contrary it should not be followed.' (emphasis added) [words in brackets added]
With regard to a complainant's / prosecutrix's failure to make a 'fresh complaint' of rape until she was prompted, ie., to a question of a leading or suggestive character, the Supreme Court in Bernard Touramasong & others v The State [1978] PNGLR 337 at page 342 were not duly concerned in that case. Therefore, this issue must be considered in relation to circumstances of the particular case and that if a 'fresh complaint' is prompted it is not to be automatically excluded from consideration.
In Peter Townsend v George Oika [1981] PNGLR 12 Greville Smith J, with whom Pratt and Miles JJ concurred, stated at page 16:
'Whilst evidence from a witness or witnesses other than the prosecutrix of a "fresh complaint" is admissible, […], it cannot amount to corroboration. In R v Whitehead ([1929] 1 KB 99 at page 102) where the accused was charged with unlawful carnal knowledge of a girl under the age of sixteen years, it was suggested that her evidence might have been corroborated by the fact that she told her mother about it afterwards. Lord Hewart said:
"In order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated. A girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story some twenty – five times in order to get twenty – five corroborations of it."
[…]
The making of recent complaint is not in itself evidence of the facts stated in the complaint. In Lovell's case ([1924] 17 CAR 163 at paged 166 – 167) Lord Chief Justice Hewart said:
"In the case of Lillyman ([1896] 2 QB 167), it was laid down that, 'Upon the trial of an indictment of rape, or other kindred offence against women or girls, 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 on the part of 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. […]"' (emphasis added)
In Jones v R (1997) 143 ALR 52 the High Court of Australia stated at page 53:
'It has been clear, at least since R v Lillyman, that upon a trial of rape or a kindred offence, the fact that a complaint was made by the prosecutrix shortly after the alleged occurrence, and the particulars of the complaint, may be given in evidence. It is not evidence of the facts complained of, but of the consistency of the conduct of the prosecutrix with her account in the witness box of the relevant events including non – consent to the act of sexual intercourse to which she deposes.'
In Bernard Touramasong & others v The State [1978] PNGLR 337 the Supreme Court held at page 338:
'[T]he fact that there is no fresh complaint by a woman alleging rape, is not evidence of consent: Kilby v R [(1973) 129 CLR 461]. […] The failure of a supposedly outraged woman to complain, or her having had the complaint, as it were, wrung from her, is a jury matter, going to the consistency or inconsistency of her alleged non – consent to the admitted intercourse.'
In R v Ugle (1989) 167 CLR 647; (1989) 43 ACrimR 446 [(1989) 88 ALR 518] the High Court of Australia stated at pages 649 & 447 respectively:
'[E]vidence of complaint goes merely to the credit of the complainant and it follows that such evidence is not admissible unless there is evidence from the complainant: see Kilby, per Menzies J (at 474). See also Sparks [1964] AC 964 at 979; Whitehorn (1983) 152 CLR 657; 9 ACrimR 107, per Murphy J (at 661; 109) and per Deane J (at 666 – 667; 112 – 113).' (emphasis added)
In R v W [1996] 1 QdR 573 the Court of Appeal held at pages 574 – 576:
'[A …] ground of appeal is that this complainant should not have been admitted because it was not made "at the earliest opportunity": Kilby v R (1973) 129 CLR 460; R v Osborne [1905] 1 KB 551 at 561. […]
[…]
[A 'fresh complaint' is admissible if,] having regard to the circumstances surrounding the complaint, including the time which had elapsed since the alleged commission of the offence, the complaint is capable of supporting the credibility of the complainant as a witness. Its function is "to negative any effect 'the alleged victim's silence might have on her credibility"': M v R (1994) 181 CLR 487 per Gaudron J at 514. The circumstances such as her age, any reason for her not having made the complaint before she did (R v Sailor [1994] 2 QdR 342 per McPherson JA at 343 – 344) and whether it was made spontaneously or only after direct inquiry or prompting or even threats or an inducement (R v Adams [1965] QdR 255). Whether or not, having regard to those circumstances, the evidence is capable of supporting the complainant's credibility is a question [… of law for the court to decide].' [words in brackets added]
In Suresh v R [1996] 16 WAR 23 the substance of the appeal relating to the admissibility of evidence of 'fresh complaint' was:
· The 'fresh complaint', which was simply that the complainant was being sexually abused by her uncle, could not be connected to any of the charges; and
· The proximity of the 'fresh complaint' to the offences charged was such that the seven (7) month delay between the last charge and the first of the complaints to her school friends, could not be treated as 'fresh' and ought not to have been admitted under the rules relating to prompt and spontaneous complaint.
With regard to the first point Anderson J, with whom Rowland and Franklyn JJ concurred, stated at page 34:
'It must be remembered that evidence of complaint is admissible as evidence of consistency of behaviour, not as evidence of the facts complained of: see R v Lillyman [1896] 2 QB 167. It is admitted as a matter going only to the credit of the complainant: see Kilby v R (1973) 129 CLR 460 at 466, per Barwick CJ. Therefore, I think as long as the accusations could relate to the sexual assault or assaults charged against the accused it is not precisely charge the offence alleged to have been committed.' (emphasis added)
With regard to the second point Anderson J relied upon the following passage by Barwick CJ in Kilby v R (1973) 129 CLR 460 at page 472:
'Whatever the historical reason for the 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.'
Anderson J continued at pages 34 – 35:
'This statement of the rule supports the view that the test of admissibility can never be reduced to precise temporal terms such as an hour, a day or a week; and that the true test of admissibility is whether the evidence shows consistency of conduct on the part of the complainant. That is a judgement that must be made in each case upon the circumstances of the case and was pointed out by Gaudron J in M v R (1994) 181 CLR 487:
" … circumstances vary greatly and there may be different views as to what is normal and, also, as what constitutes reasonable opportunity."
There will be cases, no doubt, where a delay of even a few hours will deprive the complainant of any buttressing effect. The test was expressed in R v Freeman [1980] VR 1 at 8 in the following terms:
"Accepting that the complaint, to be admissible, must have been made at the first reasonable opportunity, the words 'reasonable opportunity' require consideration. In determining whether the opportunity is the 'first reasonable opportunity', the learned trial Judge must have regard to all the circumstances … 'Reasonable' must, we think, take into account the subjective situation in which the prosecutrix was placed, and have regard to such factors as were operating on the material time after the events."
Relevant circumstances would include the youthfulness of the complainant, the existence of any cogent reason for not making immediate complaint and the circumstances under which the complaint came to be made, that is, whether it was truly spontaneous.' (emphasis added)
In considering what may be the 'first reasonable opportunity' for a child victim, Anderson J observed at page 35:
' … it is common experience in the criminal courts to hear young children say that they put up for quite a long time with unwelcome sexual molestation at the hands of an adult within the family environment because they were frightened, confused, reluctant to cause trouble, feared that they themselves would be blamed, had been told by the molester not to say anything, and so on. It is also the court's experience that in many cases the disclosure is made to a best friend or close playmate rather than to a parent or guardian or sibling, and it is well understood that there may be many reasons why it happens like this and, in particular, why the first disclosure may be delayed.' (emphasis added)
See also: M (2000) 109 ACrimR 530 at pages 534 – 535; R v Islam [1999] 1 CrAppR 22; R v Lee (1911) 7 CrAppR 31 at page 33; R v Lovell (1923) 17 CrAppR 163; R v Wannell (1922) 17 CrAppR 53; R v Wilbourne (1917) 12 CrAppR 280; Corkin (1989) 40 ACrimR 162; R v McNamara [1917] NZLR 382 & R v Greenwood [1962] TasSR 319.
[B] Distressed Condition
The statements of all witnesses who see the prosecutrix / complainant soon after the alleged commission of the offence of a sexual nature, and not just the witness/es who received the 'fresh complaint', should indicate their observation of his/her physical and emotional condition, ie., distressed condition.
Furthermore,
· if the clothes worn by the complainant / prosecutrix were dirty or damaged as a result of the commission of the offence then such clothing should be taken possession of by the investigating officer with the consent of the complainant / prosecutrix and then produced to the court as an exhibit; and
· if the complainant / prosecutrix was injured then admissible evidence proving such injuries should be produced to the court
If the clothing can not be produced then an explanation should be given to the court by the investigating officer in that regard. The law relating to 'Missing Exhibits' is examined on page 238.
In R v Redpath (1962) 46 CrAppR 319 Lord Parker CJ, delivering the judgment of the Court, held at pages 321 – 322:
'It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may in law be capable of amounting to corroboration, quite clearly, the jury should be told that they should attach little, if any weight to that evidence, because it is all part and parcel of the complaint.'
In R v Knight (1966) 50 CrAppR 122 [[1966] 1 AllER 647; [1966] 1 WLR 230] Lord Parker CJ, delivering the judgment of the Court, stated at page 125:
'[T]he distress shown by a complainant must not be over – emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence.'
In R v Wilson (1974) 58 CrAppR 304 Edmund Davies LJ, delivering the judgment of the Court, held at page 311:
'[U]nless there are very special circumstances […], the distressed condition of a complainant may simply fail to implicate the accused in the offence charged.'
In John Jaminan v The State (No 2) [1983] PNGLR 318 Pratt J, with whom Amet J concurred, stated at page 327:
'In his judgement the learned trial judge found that the complainant was in the room and that "she came out of that room crying later in the evening and the accused being there …". The distressed state of the complainant, would not, I think, amount to any corroboration in the circumstances of this particular case. There must be exceptional circumstances before such condition can amount to corroboration [ … ] although evidence of the condition of the complainant is admissible as direct evidence which goes to show a consistent course of conduct, (and it usually part of the evidence dealing with recent complaint). In the present trial however it seems to me that the learned trial judge was referring more to the evidence of the other witnesses as being corroborative of the girl's presence in the room rather than that she was crying.' (emphasis added)
In Peter Townsend v George Oika [1981] PNGLR 12 Greville Smith J, with whom Pratt and Miles JJ concurred, stated at page 16:
'A distressed condition can amount to corroboration but except in very special circumstances it should be given very little weight.' (emphasis added)
In Bernard Touramasong & Others v The State [1978] PNGLR 337 the Supreme Court stated at page 342:
'[E]vidence as to distress can be corroborative of the version given by the prosecutrix. It is evidence that has to be viewed warily, this for obvious reasons. In many cases it might have little weight.'
In R v Sailor [1994] 2 QdR 342 McPherson JA of the Court of Appeal, with whom Bryne J concurred, stated at pages 344 – 346:
'To constitute corroboration there must be independent evidence that confirms the testimony of the complainant in a material particular. Distress that is observed in a complainant after the happening of the alleged incident has been held to be capable of satisfying this requirement: see Redpath (1962) 46 CrAppR 319; R v Flannery [1969] VR 586, 590. These and some other reported decisions suggest it is a state or condition to which ordinarily little weight should be allowed as corroboration. The need for caution is sometimes said to lie in the danger that distress may be readily feigned (ie., pretended): cf R v Knight [1966] 1 WLR 230, 233; or because it is "equivocal", which in this context seems to mean that it may be due to any one or more of variety of causes other than the incident alleged: See R v Berrill [1982] QdR 508, 527. It would ordinarily be for the jury to decide matters like these; but there is a question of law at the threshold, which is whether the inference can be drawn that the distress is causally related to the incident: R v Flannery [1969] VR 586, 591. If on the evidence the apparent connection between the two is at most tenuous and remote, then evidence of distress should not be submitted to the jury as a circumstance capable of affording corroboration: R v Roissetter [1984] 1 QdR 477, 481 – 482.
[…]
The basic weakness of distress [is that …] its value or cogency as independent evidence diminishes rapidly with the passing of time. The longer the interval from the original event, the more difficult it is to be sure that a condition of distress not manifested or observed until well after that event is not due to some other intervening and unrelated cause. Eventually a stage in time is reached where, without resorting to testimony of the complainant, it ceases to be possible to link the distress with its alleged cause. Once it ceases to be independent evidence of its cause, the complainant's distress is no longer capable of corroborating her testimony.
The interval of time that lapses between the incident and the distress is plainly, therefore, an important factor in deciding whether or not they are causally related: R v Flannery [1969] VR 586, 591, where, as has been noticed, as interval of about an hour was considered too long. Although the period involved in R v Roissetter [1984] 1 QdR 477, 480 – 482, was even longer, the distressed condition observed in that case was practically continuous throughout the period.' (emphasis added) [words in brackets added]
See also: Peter Sade Kaimanisi v R (Unrep. Criminal Appeal No. 3 of 1995; Court of Appeal; per Muria CJ at page 3); R v Okoye [1964] CrimLR 416; R v Luisi [1964] CrimLR 605 & The State v Dickson Wape [1994] PNGLR 558 at page 566.
[C] Community Turning In Suspects
In The State v Anis Noki (Unrep. N1166; 11 & 12 August 1993; Papua New Guinea) Woods J, sitting alone, stated:
'In his evidence the investigating officer said that the suspects were named to him and brought to him by the local Councillor and villages. I find this a very important piece of evidence. So how do I take and assess that piece of evidence.
[…]
[W]hen the community works to participate in the legal process the courts must accept this participation and not disregard it. When anything happens in a traditional community that community appears as a rule to face the event together. They are all entitled to participate in the benefits, and they all have to share in the losses. So in a dispute they all feel involved.
This is where the coming forward of the Leaders and people of the community to hand over the suspects must be duly recognised. Of course it should be seen in and with the evidence. There must be other evidence. It becomes a matter of evidence which must be admissible, it is very relevant in the eyes of the people and must therefore be considered.
Again the communal nature of PNG Society makes one realise there can be very few secrets, when something happens everyone soon knows. There are no strangers in the night.
So if the village leaders have come forward with their own knowledge and "made" people surrender there must be some weight in that. Surely in such a communal society elders are not going to blame their own line for something the neighbouring lines have done -- if the neighbouring lines did it people would know.
[…]
[…] Of course just because the leaders turn in some suspects should not be the end of the case, such must be supported by the evidence. In fact the turning in supports and corroborates the other evidence. One must be sure that the leaders are not just marking some trouble makers to get them out of the way. Also one must be sure that the victims did not merely identify the accused after they learnt the leaders and community has handed over the suspects, thus identifying by suggestion.' (emphasis added)
See also: The State v Bikhet Ngurares Paulo [1994] PNGLR 335.
Obviously, the Leaders and the people in the community should be questioned to determine the reason for turning in a suspect or a defendant.
[D] Location & Circumstances
In Jones v Thomas [1934] 1 KB 323 Lawrence J, with whom Avory J concurred, stated at page 333:
'Mere opportunity alone does not amount to corroboration, but two things may be said about it. One is, that the opportunity may be of such a character as to bring in the element of suspicion. That is, that the circumstances and locality of the opportunity may be such as in themselves to amount to corroboration. The other is, that the opportunity may have a complexion put upon it by statements made by the defender which are proved to be false. It is not that a false statement made by the defender proves that the pursuer's statements are true, but it may give to a proved opportunity a different complexion from what it would have been had no such false statement been made.' (emphasis added)
The law relating to the 'Lies Of Defendants' is examined commencing on page 185.
In The State v Stuart Hamilton Merriam [1994] PNGLR 104 Sakora J, sitting alone, stated at pages 110 – 112:
'The requirement for reporting or complaining, usually expressed as recent complaint, is normally associated with sexual offences such as rape. The basic reason for the emergence of this requirement may lie in some early recognition of the undoubted suspicion – in the intensely and traditionally chauvinistic cultures of yesteryear -- which fell at common law on a woman who failed to complain within a short time of an outrage perpetrated upon her. And this was necessitated, in part, by the fact that, by their very nature, offences of this nature would be very unlikely to produce direct eye – witness evidence.
[…]
It has been said that sexual offences, by their very nature, are almost always committed in "secret", in the absence of third parties. This is contrasted with street and traffic offences, which can have any number of eye – witnesses. Thus, reporting or detection of sexual offences, especially of incest and child sexual abuse cases, often occur after the incidents. It is a truism that the younger the victim the less chance there is of the perpetrator being caught.' (emphasis added)
In The State v Simon Ganga [1994] PNGLR 323 Sevua J, sitting alone, stated at pages 332 – 333:
'Whilst this Court acknowledges that in this case there was no independent witness to give corroborative evidence, this Court also acknowledges that most sexual offences are not committed in public, so there is that secretive atmosphere pertaining to them. Given that factor, one cannot expect independent eye witnesses. In State v Kalabus [1977] PNGLR 87 at 94, reference was made to a number of cases. I wish only to cite part of the quotation there pertaining to R v Day [1964 – 65] NSWLR 40, as I consider it applicable in the case before me.
"… External evidence concerning the nature of the place and circumstances, under which sexual relations admittedly occurred, may provide corroborative evidence, of a circumstantial type, of lack of consent, although the only direct evidence thereof be of the complainant."
In my view, evidence of the nature and circumstances of the place and time amounted to corroborative evidence of the circumstantial type referred to above. The time was about 6pm or thereafter. The place was an isolated, disused airstrip. No one resided nearby. It was on a track not accessible to the public. The prosecutrix and the accused were by themselves. All these are circumstances which, in my view, amounted to corroboration.' (emphasis added)
In The State v Michael Rave, James Maien & Philip Baule [1993] PNGLR 85 Doherty J, sitting alone, stated at page 92:
'[The evidence of the prosecutrix regarding the issue of consent … ] has been corroborated by the circumstances of the case. In this I refer to the case of Kalabus v The State [1977] PNGLR 87 at 94, where it was said that evidence concerning the place and the circumstances in which sexual relations admittedly occurred may provide corroborative evidence and may give substantial evidence of lack of consent. This was referred to also, indirectly, in the case of Touramasong v The State [1978] PNGLR 337].' (emphasis added) [words in brackets added]
In Bernard Touramasong & Others v The State [1978] PNGLR 337 the Supreme Court stated at page 339:
'As is not unusual in these cases, the prosecutrix put herself in a dangerous situation through rashness or stupidity if the fact is that she never envisaged or consented to intercourse. […]
[The prosecutrix's …] conduct in going to this party has been strongly criticised. Prima facie it is strange that a woman who had been raped by four men, a rape that involved trickery early, verbal threats later, then some physical violence, should have attended the function. However, one must remember the hour. It was dark. The girl was far away from her residential college. Accepting her story, she might well have decided that the men had had their fill, and would harm her no more, and that she was better off going with them.' (emphasis added) [words in brackets added]
In that case 'the events giving rise to the incident complained of occurred over quite a long period of time', see The State v Peter Yama (Unrep N817; 8, 9 & 16 March 1990; Jalina AJ; sitting alone).
In The State v Peter Yama (Unrep N817; 8, 9 & 16 March 1990) Jalina AJ; sitting alone, stated:
'From the evidence of the victim, it can be seen that she was abducted from her boyfriend very late at night by the accused and his friends who were total strangers to her, taken in their vehicle under a pretext of going to the police station to settle matters arising out of an accident involving her boyfriend's vehicle and the vehicle the accused was in, and taken to a secluded spot near Moitaka with a view to each of them taking turns at having intercourse with her.
[…]
During the time the victim was with the accused and three others and then subsequently with the accused alone, she did not scream or try to escape. The reason she gives for this is that it was late at night, in the middle of nowhere coupled with the accused having a gun, she did not want to risk her life trying to run away and also that she acted in the way she did so that she could get them to a place where help could be sought and police could be contacted. In fact that was exactly what she did to the accused.'
See also: Credland v Knowles (1951) 35 CrAppR 48 at page 55.
The law relating to 'Circumstantial Evidence' is examined commencing on page 183.
[E] Medical Evidence
In R v Paul Misiata (Unrep. Criminal Case No. 35 of 1997) Muria CJ stated at pages 4 – 5:
'The evidence of injuries and torn clothing are important where the issue of consent, in a rape case, is raised. Such evidence would tend toward showing resistance or force. But such evidence can also be present even in cases of consensual sexual intercourse. There is also the evidence from the victim herself that when she ran onto the reefs, she stumbled and fell on the stones which confirmed PW2's conclusion on the causes of the injuries. So the Court must carefully scrutinize such evidence. It is therefore essential that the prosecution, upon whom the burden lies of excluding consent, not only lead admissible evidence on such physical condition of the victim but must also tender material evidence of such condition. Neither the records of the injuries said to be kept at Atoifi Hospital nor the alleged torn skirt was produced in this case. This is not satisfactory at all especially in the circumstances of this case. I find that the evidence seeking to establish that the injuries were caused as a result of force exerted by the accused upon the victim very unsatisfactory and cannot be reliably accepted by the Court. As such they lack corroborative evidence.' (emphasis added)
Medical evidence may not be capable of corroborating the evidence of a complainant in respect of cases of 'Rape', unless it is capable of proving that the intercourse had taken place without her consent, see James v R (1971) 55 CrAppR 299 at page 303.
In Epeli Davinga v The State [1995] PNGLR 263 the Supreme Court stated at page 266:
'There is no doubt that it is open to both prosecution and defence to agree on the admission of certain facts, and this is often done where there is no doubt or no challenge to the facts. And with the costs of justice and the pressure to make courts and trials more efficient, such agreements on the admission of uncontroverted facts would be part of any efficient court system [such as] medical reports, where there is no challenge or doubts as to the condition of the patient, are tendered by consent […]. And when such matters are tendered, it is done by consent, as both parties agree that they are relevant, and it is then other evidence from the respective parties which affects the issue of guilt or innocence. Of course, a trial Judge should always consider carefully whether there can be prejudice to a fair trial by the admission of such evidence.' (emphasis added) [words in brackets added]
Although medical evidence is capable of corroborating the evidence of a complainant / prosecutrix it is not essential evidence to prove whether or not a complainant / prosecutrix has consented. The fact that some complainants / prosecutrixs do not:
· seek medical attention soon after the commission of an offence of a sexual nature; or
· suffer injuries not consistent with being the victim of an offence of a sexual nature,
does not necessarily mean:
· that such complainants / prosecutrixs should not be believed; or
· that the offence in question can not be proven.
In The State v Paul Talip Kambio Wasma (Unrep N1327; 13, 14 & 20 March 1995) Injia J, sitting alone, stated:
'The Medical Report presents some problem because the victim was taken to the hospital some two weeks later. I do not think that is conclusive of indecent assault not occurring. The important fact being that the victim complained to her mother and Yere of the accused's actions. By this time, the visible signs of interference with the vagina would have precipitated anyway.' (emphasis added)
In The State v Peter Yama (Unrep N817; 8, 9 & 16 March 1990) Jalina AJ, sitting alone, stated:
'One of their major arguments was that there was no mention of physical violence or nervous or psychological effects in the medical evidence and as such there was consent. The Supreme Court had this to say [in Bernard Touramasong & Others v The State [1978] PNGLR 337] at page 341 regarding consent:
"The prosecutrix was not a virgin and was mature, so presumably would have been capable of receiving the male organ without any difficulty under normal conditions. Of course, conditions were not normal if it was rape. However, assuming it was, it certainly was not one of those hideously wild affairs that we have all heard of, where so often, serious physical injury is caused. And we have no doubt that sensible women, seeing their inevitable fate, give in, and relax at the critical moment, thus reducing the risk of injury. This is not to say that they consent. We have all tried cases of rape and carnal knowledge where serious physical and nervous damage resulted. But we have also tried cases where the undoubted victims emerged unscathed, sometimes even when sexually very immature."
Applying that passage to the present case, there is no doubt that in the circumstances of this case the prosecutrix has been a sensible woman and as she stated in her evidence, she did not want to risk her life by screaming, or running away and therefore at the end of the whole episode, she gave in to the accused and ended up with no physical injuries both 'to her person as well to her private parts. That is not to say she consented.' (emphasis added)
The law relating to 'Opinion Evidence -- Experts' is examined commencing on pages 202.
See also: R v Peter Taku (Unrep. Criminal Case No. 3 of 1995) Palmer J stated at pages 16 – 17 & R v Cooper (1914) 10 CrAppR 195.
[F] Accomplices
In The State v Bike Guma [1976] PNGLR 10 Raine J, sitting alone, stated at pages 12 – 13:
'[A]s a tribunal of fact, so it is said, I must be wary of accepting the uncorroborated evidence of a prosecutrix and of an accomplice.
[…]
[… T]he same principles apply as in the case of the uncorroborated evidence of accomplices as do in the case of the uncorroborated evidence of a prosecutrix.
[…]
[… W]ith accomplices their evidence should be treated with extreme caution.
But the situation here is different. I see no reason why the prosecutrix should not be corroborated by an accomplice of the accused, and the accomplice by the prosecutrix.' (emphasis added)
The law relating to the evidence of 'Accomplices' is also examined commencing on page 298.
[G] Lies Of Defendants
If the prosecution is able to prove that a defendant did lie; either:
· during the course of a record or interview; and / or
· in giving evidence,
then such evidence can amount to 'corroboration'.
In Edwards v R (1993) 178 CLR 193 Deane, Dawson and Gaudron JJ of the High Court of Australia, in a single judgement, stated at pages 208 – 209:
'Ordinarily the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence.
[…]
When the telling of a lie by an accused amounts to an implied admission the prosecution may rely upon it as independent evidence to convert what would otherwise be insufficient into sufficient evidence of guilt or as corroborative evidence. But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of a lie may constitute evidence against him.'
See also: Jones v Thomas [1934] 1 KB 323.
The law relating to 'Lies Of Defendants' is examined commencing on page 185.
[H] Flight Of Defendants
The 'Evidence of Flight' refers to the sudden departure of a defendant from the location where the alleged offence occurred for no apparent reason. Such behaviour may provide evidence to prove the guilt of a defendant provided that guilt was the only reasonable explanation for that departure or 'flight'. However, to prove a charge 'beyond reasonable doubt' more evidence than that of 'flight' is obviously required.
In R v Melrose [1989] 1 QdR 572; (1987) 30 ACrimR 332 it was held:
Evidence of flight, and the defendant's statements in relation thereto might give rise to an inference of guilt and might provide corroboration of the evidence of the complainant.
Shepherdson J stated at pages 577 – 579 & 336 – 338 respectively:
'Wigmore on Evidence, 3rd ed. Para 276 being part of a section headed "Conduct as evidence of guilt" says:
"It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself."
[…] There remain only a few details that can be open to comment:
(a) It is occasionally required that the accused should have been aware that he was charged or suspected. This is unnecessary; it is the act of departure that is itself evidential; ignorance of the charge is merely a circumstance that tends to explain away the guilty significance of the conduct.
The limitation has also been advanced that flight is not admissible where the evidence of the offence is direct evidence; but this notion is groundless to the point of absurdity.
(b) It has sometimes been said that an unexplained flight is the admissible evidence. But this is obviously unsound. The prosecution cannot be expected to negative beforehand all conceivable innocent explanations. The fact of flight is of itself significant; it becomes most significant when after all no explanation is forthcoming.
(c) The flight of another person is relevant so far only as the accused has connived at it; and may then also become relevant as an act of suppression of testimony.
(d) Whether the fact of flight raises a presumption of law is a question of the rules of presumption.
(e) [… T]he accused may always endeavour to destroy the adverse significance of his conduct by facts which indicate it to be equally or more consistent with such other hypothesis than that of a consciousness of guilt. […]
(f) An attempt at suicide may be construed as an attempt to flee and escape forever from the temporal consequences of one's misdeed. That it is evidential has been usually conceded.' (emphasis added)
In R v El Adl [1993] 2 QdR 195 the principles enunciated in R v Melrose (supra) were examined by the Court of Appeal. At page 198 that Court stated:
'A sudden departure by a person who ordinarily stays close to home may give rise to quite different inferences from those which could be drawn from a journey by one who commonly moves about the country. The nature of the reasons, if any, given for the journey may also bear upon the proper conclusion to be drawn. […T]he judge said that flight can be an indication of guilt. That statement is correct and is plainly inconsistent with the notion that the appellant's flight was conclusive of guilt.' (emphasis added)
In R v Tamcelik [Unrep CA 312 of 1993; 18 March 1994] the Queensland Court of Appeal applied the principles relating to the evidence of flight. In that case the defendant absconded after being released on bail for the offence in question. He decamped to New South Wales and was not re-arrested for approximately twelve months. The Court stated:
'In reaching a verdict of guilty the jury were entitled to rely on the appellant's departure to New South Wales, but they could do so only if guilt was the only reasonable explanation of that departure or "flight".' (emphasis added)
See also: Power & Power (1996) 87 ACrimR 407 at page 409.
The law relating to the evidence of 'Flight' is examined commencing on page 187.
[I] Admissions
In R v Gere [1981] SILR 145 Daly CJ held that an 'admission' can amount to evidence of 'corroboration'.
In R v Willoughby (1988) 89 CrAppR 91 Saville J, delivering the judgment of the Court, held at page 94:
'In such a case as the present, where the crime but not the involvement of the defendant is admitted, there is of course no need for corroborative evidence that the crime has been committed, for there is nothing suspect from the witness in that regard. What is then needed is independent evidence corroborating any testimony of the suspect witness with regard to identity. Conversely, where the involvement of the defendant, but not the crime, is admitted (eg. On a charge of rape where consent is in issue), the need is for independent evidence corroborating any testimony of the suspect witness that the crime was committed. If neither the crime nor the involvement of the defendant is admitted, then the independent evidence, to amount to corroboration, must be such as to show or tend to show that the testimony of the suspect witness with regard to those matters is reliable.'
An admission made by a person when drunk may not be weighty as if he/she was sober, but it is some 'corroboration', see R v Hedges (1909) 3 CrAppR 262 at page 265.
See also: R v Rolfe (1952) 36 CrAppR 4 at page 6 & R v Siedofsky [1989] 1 QdR 655; (1988) 34 ACrimR 268.
[44.3] Complainant / Prosecutrix Failure To Give Evidence
In The State v Bonny Yaka Benson (Unrep N1549; 9 & 10, 17 & 18 September 1996) Passingan AJ, sitting alone, stated:
'The second issue arises out of the fact that the prosecutrix was not called to give evidence in the trial. The reasons were not disclosed by the State.
Mr Sakumai for the accused submits that in the absence of the oral testimony of the prosecutrix there is no evidence either of rape or unlawful carnal knowledge, and therefore his client should be acquitted.
In my view, this is an unusual course taken by the State in a rape trial. In the absence of any reason given why the prosecutrix is unable to give evidence and the fact that she is only a child of about 11 years of age, the Court will proceed and deal with the matter as if the prosecutrix was found unfit to take the oath or affirmation. That even if she was present, because of her age she could not or would not speak.
I adopt the case of The State v Sugueri Sipi [1987] PNGLR 357.' (emphasis added)
The defendant was found guilty of rape.
In The State v Sugueri Sipi [1987] PNGLR 357 the Court considered a case which involved the complainant, an eight year old child who did not give evidence.
Brown AJ, sitting alone, stated at page 360:
'[…I]t seems to me that the mother's evidence, which I have accepted, and which describes the positions in which she saw her daughter and the accused when naked and when the accused had an erection, really leaves open no other inference than that he was about to engage in some form of carnal knowledge of the girl.'
His Honour's ruling in respect of corroboration should be examined in light of the cases previously quoted commencing on page 668.
In R v Ugle (1989) 167 CLR 647; (1989) 88 ALR 518; (1989) 43 ACrimR 446 the High Court of Australia stated at page 447:
'[E]vidence of [fresh] complaint goes merely to the credit of the complainant and it follows that such evidence is not admissible unless there is evidence from the complainant: see Kilby, per Menzies J (at 474). See also Sparks [1964] AC 964 at 979; Whitehorn (1983) 152 CLR 657; 9 ACrimR 107, per Murphy J (at 661; 109) and per Deane J (at 666 – 667; 112 – 113).' (emphasis added) [words in brackets added]
Refer also to the law relating to:
· the 'Prosecution's Discretion To Call Witnesses' commencing on page 120; and
· the 'Evidence of Young Complainants' commencing on page 699.
[44.4] Evidence Of Sexual Relationship
[44.4.1] Introduction
In R v Krausz (1973) 57 CrAppR 466 [[1973] CrimLR 581] Stephenson LJ, delivering the judgment of the Court, stated at page 472:
'It is settled law that she who complains of rape or attempted rape can be cross – examined about (1) her general reputation and moral character; (2) sexual intercourse between herself and the defendant on other occasions, and (3) sexual intercourse between herself and other men; and that evidence can be called to contradict her on (1) and (2) but that no evidence can be called to contradict her denials of (3) […].'
[44.4.2] With Defendant
The following is a summary of the principles examined in this subsection:
· A complainant may be cross-examined as regards his/her sexual relationship with the defendant, prior to and after the commission of the offence/s charged;
· The evidence of a sexual relationship:
♦ may make the complainant's allegation more credible;
♦ can place the offence/s charged in a true and realistic context; and
♦ can establish the defendant's 'guilty' passion, ie, sexual feeling, for the complainant;
· The weight to be afforded to the evidence of subsequent sexual activity will be less than that to be afforded to prior sexual activity;
· The remoteness, ie, the length of period before and after the dates of the alleged offence/s, will determine the weight to be given to such evidence;
· As regards sexual activity which has taken place over a long period of time the prosecution should charge the defendant with a number of 'representative' incidents which sufficiently reflect the total criminality involved, spread over the whole of the period in question; and
· The evidence of sexual activity does not amount to 'similar fact or propensity evidence' if it is not sought to be admitted to show the propensity, ie., tendency, of the defendant to commit the offences charged, but simply to show the sexual relationship between the parties involved.
In R v Massey [1997] 1 QdR 404 McPherson JA and Demack J of the Court of Appeal, in a single judgement, stated at pages 407 – 411:
'There is authority that on a charge of an offence of a sexual character, it is open to the prosecution to lead evidence of prior sexual acts between the same parties. The leading decision is R v Ball [1911] AC 47 (a case of incest), which has been followed in Australia on many subsequent occasions. See R v Gellin (1913) 13 SR(NSW) 271; R v Allen [1937] StRQd 32; R v Witham [1962] QdR 49; Bradley (1989) 41 ACrimR 297; R v Sakail [1993] 1 QdR 312. The basis for admitting evidence of similar acts on occasions other than that or those specifically charged has been variously stated. In R v Ball [1911] AC 47 at 71, Lord Loreburn LC said it was admissible to establish "a guilty passion towards each other". That explanation was adopted in some of the later cases: see, for example, R v Witham [1962] QdR 49, at 77. R v Ball was a case of incest between brother and sister, where evidence of a mutual sexual passion might be thought to go far to proving an offence of that kind. On occasions it has been rationalised as tending to show the existence of an unnatural or unexpected relationship of sexual intimacy, as in the case of incest and sodomy between father and daughter: R v Witham, at 81.
In the same case, Stable J, concluded that the true basis of admission is that the evidence forms "part of a chain of relevant circumstances explaining the prisoner's conduct and the exclusion of which would render the other evidence unintelligible or make it impossible for the jury to obtain a proper appreciation of the events of a particular day" (R v Witham [1962] QdR 49, at 82).
[…]
The notion that evidence of similar acts, facts or events on other occasions is admitted to explain and lend verisimilitude to what would or might otherwise appear in the complainant's evidence as an isolated and possibly incredible incident also enjoys the high authority of Willes J in R v Rearden (1864) 4 F & F 76, at 80; 176 ER 473, at 476, where that learned judge said:
"It has repeatedly appeared to me in cases of this sort, that the man, by a threat of violence, deters the child from complaining, and thus acquires a species of influence over her by terror which enables him to repeat the offence on subsequent occasions, and this seems to me to give a continuity to the transaction, which makes such evidence properly admissible."
[…]
[I]t is clear that evidence of similar acts and transactions is admissible as tending to the proof of the offence charged. Where the evidence of one or more of those acts is confirmed by independent evidence, it is also capable of corroborating the testimony of the complainant with respect to the particular incident or occasion that is charged as the offence. […]
[…]
The authorities make no distinction between similar acts taking place before, and those taking place after, the act charged. R v Rearden is a case in point. On a charge of raping a 10 year old child on a Thursday, Willes J admitted evidence that the accused had also had sexual intercourse with the child again on the following Saturday and Monday. In R v TJW Ex parte Attorney – General [1988] 2 QdR 456, the Court of Criminal Appeal, on a reference under section 669A of the Criminal Code, held that the decision in R v Witham, that evidence of acts of indecency by an accused person upon a complainant "before and after" the alleged sexual offence was admissible, had not been overruled by later decisions. The specific point raised here, which is whether corroborated evidence of an act of indecency or sexual misconduct on another occasion is capable also of corroborating evidence of the complainant about similar acts on an earlier occasion or occasions, has been considered in Australia on at least two occasions. In R v McCann [1972] TasSR (NC) 3, on a charge of defiling a girl under 18, there was evidence of an admission by the accused of sexual intercourse with the girl on dates subsequent to those charged. Crawford J overruled an objection that the admission was incapable of corroborating any particular act of intercourse. […]
The second decision of relevance is of the Court of Criminal Appeal in R v Sakail [1993] 1 QdR 312. [… Macrossan CJ, with whose reasons Ryan and Byrne JJ concurred, stated at page 316:]
"A particular application of the principle is to be seen when someone is accused of committing sexual offences with a single complainant. Circumstances which place the sexual side of the two persons' relationship in perspective may be admitted in evidence. Proof of similar activity or of activity of a related kind both before and after the specific acts charged may be given as showing the relationship between the two persons (in some contexts referred to as 'the guilty passion'). This evidence may be given because, when known, it can be persuasive that the act charged actually occurred and it can do this directly by making the allegations seem more likely or (if, indeed, this is a difference) by providing a helpful context for decision upon the matter."
His Honour added (at 317) that the appellant's admission of sexual intercourse in that instance "may be regarded as circumstantial evidence in proof of the matters charged"; and the circumstantial evidence can constitute corroboration". The evidence of the appellant's admission, his Honour said:
"… was capable of constituting corroboration because it could be regarded as supporting the Crown proof, and, in contrast with the substance of his Honour's direction, it should be said that it supported proof of both charges and not just, at the most, one of them."
With respect, his Honour's reasoning, supported as it is by the authorities he cites some of which have been referred to here, is persuasive and disposes of the present ground of appeal. […]
[…]
The second point concerns the lapse of time between the offences charged in counts 1, 2 and 4 and the date or occasion of the offence charged in count 5. In R v Sakail [1993] 1 QdR 312 at 319, Macrossan CJ sounded a caution concerning an admission by a person, who was accused of rape, to the effect that he had been involved with the complainant "many years before" and had forced her to have sexual intercourse with him, "but had not seen her nor had any contact with her for the last ten years …". His Honour said that an instance like that might be regarded as showing nothing about the relationship between the two at a relevant time, and as being not reasonably capable of demonstrating on a circumstantial basis anything touching the likelihood of the occurrence of the matter charged. […] In McConville v Bayley (1914) 17 CLR 509, at 512, Griffith CJ said that " … when it is a question of innocence or guilt as to the relations between a man and a woman who are not married, the whole history of the relationship is necessarily involved". To apply that observation without qualification to criminal proceedings may go too far […].' (emphasis added)
In Beserick (1993) 66 ACrimR 419 Hunt CJ at CL, with whom the other members of the New South Wales Court of Criminal Appeal concurred, stated at pages 422, 423 & 428 – 430:
'The evidence [of sexual activity between the complainant and the accused other than that which is the subject of the charge] is admissible, first, in order to establish a sexual relationship which makes the complainant's allegation more likely to be true. The "guilty passion" of the adult for the child which such conduct shows may well make more credible the complainant's evidence that the sexual activity took place upon the particular occasion which is the subject of the offence charged was in fact committed: Martin v Osborne (1936) 55 CLR 367 at 376 (Dixon J); Harriman (1989) 167 CLR 590 at 631; 43 ACrimR 221 at 251 (McHugh J); B [(1992) 175 CLR 599] (at 602, 609, 610 – 611, 618; 227, 232, 233, 239 – 240). Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. […] Such evidence provides the key to an assessment of the relationship between them, and, as such, constitutes part of the essential background against which the evidence of the complainant and the version of the accused necessarily falls to be evaluated: B (at 610; 223); see also at 603, 604 – 605; 227, 228 – 229.
Evidence of a sexual relationship between the complainant and the accused other than that which is the subject of the charge is nevertheless frequently of a highly prejudicial nature, in that it tends to show a propensity on the part of the accused to commit crimes of the nature charged or crimes of a similar nature. Its admissibility has therefore always been subject to the well-known discretion in criminal trials to exclude evidence where its probative value is outweighed by its prejudicial effect […].
[…]
A guilty passion, or sexual desire or feeling, is a state of mind. The state of a person's mind – whether the nature of that state of mind be knowledge, intention, malice, guilty passion or whatever – is as much a fact is as that person's state of digestion […].
So far as its relevance to the issue of the existence of a guilty passion at the time of the offence is concerned, […], there is hardly any limit as to the time when the other sexual activity between the complainant and the accused may have occurred. But its admissibility is a different matter. That is because of the two balancing operations which the judge must undertake in relation to such evidence, to which I referred earlier. The probative value of that evidence of other sexual activity must outweigh any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission. And its probative value must also outweigh the prejudicial effect which the evidence may have of demonstrating a propensity on the part of the accused to commit the crimes of the nature charged or crimes of a similar nature.
[R]emoteness of the other sexual activity from the time of the offence charged goes to the weight of that evidence. The more remote the other sexual activity is, the less will be its weight; and, in general (as a matter of commonsense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity.
So far as concerns the second of the balancing operations (the discretion to reject the evidence upon the basis that its probative weight is outweighed by its prejudicial effect), the stage will inevitably be reached where the evidence of other sexual activity between the complainant and the accused will no longer reasonably be required either to establish the guilty passion (or the sexual desire or feelings) of the accused for the complainant or to place the evidence of the offence charged into a true and realistic context, and it does little or no more than emphasise that the accused has a propensity for committing crimes of the nature charged or crimes of a similar nature. When that stage has been reached, trial judges should be firm in excluding the evidence tendered.
In TJW; Ex parte A-G [1988] 2 QdR 456, […], Thomas J said (at 457):
"… I do not think that it has ever been doubted that in cases involving sexual activity between two persons the whole history of their sexual activity may be relevant."
I fear that that passage has sometimes been taken too literally by some judges. In Bradley (1989) 41 ACrimR 297, Thomas J himself made it clear (at 298) that the evidence to which he had been referring is:
"… subject to the discretionary control by the trial judge, and that such evidence should be received only to such extent as is necessary for the fair conduct of the particular trial."
[…]
Obviously enough, no hard and fast rules could be laid down as to how this difficult discretion should be exercised. To some extent, it may depend upon the nature of the issues raised by the accused. Usually, however, it will depend to a very large extent upon how the Crown has framed its case.
Where the sexual activity between the complainant and the accused has taken place over a long period, it is the usual practice of the Crown to charge the accused in relation to a number of "representative" incidents which sufficiently reflect the total criminality involved, spread over the whole of that period. Provided that each such incident is sufficiently specified […], there could be little doubt that in most cases the whole of the sexual activity between them over that period would quite properly be admitted in order both to establish the desire or feelings of the accused for the complainant at the time of each incident giving rise to an offence charged and to place such incident into its true and realistic context. Once evidence is given that the accused has committed a number of offences charged, the additional prejudice created by evidence showing that he has committed other offences as well will be much the same whether those other offences be few or many in number. […]
On the other hand, where the Crown does not follow that usual practice (as happened here), and only one offence is charged, the limits upon the proper admission of such evidence must inevitably be greater. […]
[…] In general, the weight to be afforded to subsequent sexual activity will be less than that afforded to previous sexual activity, hence the proper exercise of discretion will more readily favour the admission of evidence of the previous rather than subsequent kind.' (emphasis added)
Such evidence is not to be considered as 'similar fact or propensity evidence' if it is not sought to be admitted to show the propensity, ie., tendency, of the defendant to commit the offences charged, but simply to show the relationship between the parties involved, see S v R (1989) 64 ALJR 126, per Toohey J at page 132; R v Sakail [1993] 1 QdR 312, per Macrossan CJ at page 316 & Beserick (1993) 66 ACrimR 419, per Hunt CJ at CL at page 426.
See also: J (1996) 88 ACrimR 399; Mason v R (1995) 15 WAR 165 at page 185 & R v B [1989] 2 QdR 343.
The law relating to:
· 'Similar Fact Or Propensity Evidence' is examined on page 188; and
· 'Joinder Of Charges' is examined commencing on page 91.
See also an article by McGuire J on 'Child Sexual Offences – Joinder Of Charges and Similar Facts' (1995) 15 QLR 181.
[44.4.3] With Other Persons
In R v Gregory (1983) 151 CLR 566 the High Court of Australia stated at page 571:
'The statement that evidence that the complainant on a charge of rape consented to sexual intercourse with a man other than the accused is not relevant to the question whether she consented to intercourse with the accused, although correct in most cases, is not universally true. Usually, evidence as to the sexual experience of the complainant with other men could, at most, go to her credit, and if she has been cross-examined on the subject her answers must be accepted, in accordance with the general principle that a party may not impeach the credit of his opponent's witness by calling witnesses to contradict him or her on irrelevant matters.
In some cases, however, the other acts of consensual intercourse may be so closely connected with the alleged rape, either in time and place, or by other circumstances, that evidence as to those other acts may be relevant to the issues at the trial; in those circumstances the evidence may not go solely to credit but may be probative of the fact that the complainant consented to have intercourse with the accused, or of the fact that the accused believed that the complainant was consenting. If evidence of this kind is relevant to an issue in the case, and not merely to credit, there is no rule of law that excludes it. The submission that there is some special rule of exclusion applicable to evidence of this kind is misconceived; the evidence of other sexual experience is excluded because, and only when, it is logically irrelevant to a fact in issue." ' (emphasis added)
See also: R v Voila [1982] 1 WLR 1138; [1982] 3 AllER 73; (1982) 75 CrAppR 125 & R v Bashir & Manzur (1970) 54 CrAppR 1.
[44.5] Closed Court
Section 10 of the Constitution states (in part):
'(9) Except with the agreement of all the parties thereto, all proceedings of every court […], including the announcement of the decision of the court […], shall be held in public.
(10) Nothing in the preceding subsection shall prevent the court or other adjudicating authority from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other authority --
(a) may by law be empowered so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of decency, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or
(b) may by law be empowered or required so to do in the interests of defence, public safety or public order.' (emphasis added)
Section 64 of the Criminal Procedure Code (Ch. 7) states:
'The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open court to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of the inquiry into or trial of any particular case that the public generally or any particular person shall not have access to or be or remain in the room or building used by the court.' (emphasis added)
During the course of a complainant / prosecutrix giving evidence the Court should not be open to the public.
The law relating to 'Right To Be Heard In Open Court' is examined commencing on page 155.
Refer also to the law relating to the 'Erection Of Screens' which is examined commencing on page 701.
[44.6] Young Complainants
[44.6.1] Introduction
In The State v Stuart Hamilton Merriam [1994] PNGLR 104 Sakora J, sitting alone, commented on page 111:
'Those who commit sexual offences against children (almost always males) are usually referred to in other jurisdictions as "paedophiles".
It should, therefore, come as no surprise that a large number of sexual offences against children are committed by those who are in a position of tutelage and / or trust.'
In The State v John Saganu [1994] PNGLR 308 Doherty J, sitting alone, stated at page 309:
'Children are more susceptible to suggestion, they have shorter memory recall and more vivid imaginations than adults. Care should be taken with their evidence but if court seeing the witness before it considers and finds he is speaking nothing but the truth than the court is entitled to accept it.'
In R v G [1994] 1 QdR 540 Pincus JA, as a member of the Court of Appeal, made the following observation at pages 546 – 547:
'It seems fairly common for young complainants, speaking of sexual abuse, to give inconsistent or confusing accounts; more generally, ordinary experience of young children suggests that some have difficulty attributing numbers and dates to events and getting sequences right.'
As to the undesirability of calling complainants to give evidence who are five years of age, see R v Wallwork (1958) 42 CrAppR 153 at page 161.
The law relating to the 'Competence Of Children To Give Evidence' is examined commencing on page 284.
[44.6.2] Need For Corroboration
The law relating to need for corroboration of the evidence of children was examined in R v Morgan [1978] 1 WLR 735 Roskill LJ stated at pages 738 – 739:
'The relevant law was stated by Lord Goddard CJ in Reg.v Campbell [1956] 2 QB 432, a decision affirmed in this respect by the House of Lords in Reg. v Hester [1973] AC 296. I need not read one passage from the speech of Lord Morris of Borth – y – Gest in Reg. v Hester -- although other parts of the decision in Reg. v Campbell were later criticised in Reg. v Kilbourne [1973] AC 729, this part was expressly approved in Reg. v Hester [1973] AC 296, 314:
"Though in Campbell's case [1956] 2 QB 432 the court was dealing with a case where only sworn evidence was given, it was expressly stated that the court was endeavouring to deal comprehensively with the evidence of children. At the end of the judgment, at p. 438, Lord Goddard CJ summed up the conclusions of the court. They may be stated as follows: (a) The unsworn evidence of a child must be corroborated by sworn evidence; if, then the only evidence implicating the accused is that of unsworn children the judge must stop the case." […] "(b) It makes no difference whether the child's evidence relates to an assault on himself or herself or to any other charge, for example, where an unsworn child says that he saw the accused person steal an article." […] "(c) The sworn evidence of a child need not as a matter of law be corroborated, but a jury should be warned, not that they must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls though they may do so if convinced that the witness is telling the truth. (d) Such warning should also be given where a young boy or girl is called to corroborate the evidence either of another child whether sworn or unsworn or of an adult. …".'
In R v C B R [1992] 1 QdR 637 de Jersey J, with whom the other members of the Court of Criminal Appeal concurred, stated at page 639:
'It has generally been recognised that a trial judge should warn a jury about the danger of convicting on the uncorroborated evidence of a child. In Director of Public Prosecutions v Hester [1973] AC 296, 325 Lord Diplock said that that was because "children … are yet so young that their comprehension of events and of questions put them or their own powers of expression may be imperfect".'
In B & D (1993) 66 ACrimR 192 King CJ of the South Australian Court of Criminal Appeal, with whom Duggan J concurred, held at page 194:
'The relevant rule of practice requires that where the witness is a young child, the jury should be warned that it is dangerous to convict on the uncorroborated testimony of the child: B (1992) 175 CLR 599; 63 ACrimR 225, per Dawson and Gaudron JJ (at 616; 238).
There is no fixed age below which the particular warning should be given and whether the warning should be given in a particular case is a matter for the decision of the trial judge: B (at 617; 238). The decision of the trial judge is of course reviewable on appeal. A review of the cases indicates that, while some flexibility has been allowed in the case of older children, appellate courts have insisted upon the corroboration warning being given in relation to the evidence of younger children.
[…]
I think that the age of the child at the time of giving evidence is the predominant consideration in determining whether a corroboration warning should be given. The reasons commonly given for the warning, namely susceptibility of children to influence by adults, the tendency to confuse fantasy with fact and youthful irresponsibility, are all directed to the degree of maturity existing at the time of giving evidence.
It is clear, however, that the judge is entitled to take into account the age of the child at the time of the alleged offence: B (at 617; 238). I think too that a relevant consideration is the age of the child at the time of making the first complaint. Once a false complaint is made a witness tends to be locked into the situation created by the making of the false complaint and may persist with it even though with greater maturity making the complaint is regretted.' (emphasis added)
The Court should specify what evidence it is relying on as corroborative evidence, see R v Goddard & Goddard (1962) 46 CrAppR 456.
However, the degree of evidence of corroboration is no greater for children than adults, see R v Dossi (1918) 13 CrAppR 158 at pages 160 – 161.
See also: R v Sawyer (1959) 43 CrAppR 187; R v Hatton (1925) 19 CrAppR 29; [1925] 2 KB 322 & The State v Kewa Kai [1976] PNGLR 481 at page 482.
[44.6.3] Erection Of Screens
In DJX, SCY & GCZ (1990) 91 CrAppR 36 the Lord Lane CJ, delivering the judgment of the Court of Appeal, held at pages 39 – 41:
'It had become apparent from experience that children in cases such as this, not surprisingly, were shown to be reluctant to give evidence at all. Again we are told that there had been cases which had collapsed simply because the child was unwilling or unable to speak as to the facts of which he or she was expected to speak. […]
[…]
[…] The Common Serjeant, who was the judge, had taken the precaution of having erected in the court this particular screen, so that counsel and everybody else could see exactly what it was which was entailed. The Common Serjeant, having assembled the court, explained what the situation was, saying that the purpose of have the screen there "is to obscure and indeed prevent the child seeing, or the children who will give evidence, from seeing anyone in the dock in case they might be influenced one way or the other by them, and counsel can plainly see the child, the jury can see the child and I personally can see no objection to that procedure. Do any defence counsel wish to address me?" Defence counsel did. They opposed the idea and submitted that it would not be proper to have the screen in position as was suggested.
[…]
The principal ground of the complaint is that it was an unfair and prejudicial act to erect the screen, the suggestion being that the jury might have been unduly influenced, unfairly prejudiced against the defendants by seeing the screen there, and the jury might think that there was a suggestion that the person in the dock had already in some way intimidated the child who was going to give evidence. That would act in a prejudicial way to the defendant in the trial.
The learned judge has the duty on this and on all other occasions of endeavouring to see that justice is done. Those are high sounding words. What it really means is, he has got to see that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies. He came to the conclusion that in these circumstances the necessity of trying to ensure that these children would be able to give evidence outweighed any possible prejudice to the defendants by the erection of the screen.
This Court agrees with him in that view. […]
We have been referred to an earlier decision, the case of Smellie (1919) 14 CrAppR 128, in which the appellant's daughter, a young girl, was called to give evidence. The appellant was compelled by the warder by order of the Court to sit on the stairs leading out of the dock out of sight of the little girl when she gave evidence. The Court held that that was a perfectly proper procedure.
We take the view that we do not need authority to confirm us in the view that what the learned judge did in his discretion was a perfectly proper, and indeed a laudable attempt to see that this was a fair trial: fair to all, the defendants, the Crown and indeed the witnesses. That ground of appeal fails.'
[44.7] Proof Of Age
The evidence of the complainant as to his/her age may be sufficient, see R v Turner [1910] 1 KB 346 [[(1910) 3 CrAppR 103] at page 362.
If a birth certificate is sought to be tendered there must be evidence proving the name of the person on the certificate, see R v Rogers [1914] 10 CrAppR 276 at page 278.
In R v Patrick Billy Kaika Ulio (Unrep. Criminal Case No. 51 of 1974) Bodilly CJ stated at pages 2 – 3:
'There remains the question of the age of Helen Mary at the time of the incident. Mr. Vooght argues that age must be strictly proved and he says that in this case there must be doubt as to the age of Helen Mary because the doctor estimates it as between 12 and 14 years and the mother's memory must be regarded as suspect because she speaks of was probably a baptism certificate. I cannot accept for the purposes of a charge under section 134(1) of the Penal Code that the actual age of a complainant must be strictly proved. All that must be strictly proved is that at the time of alleged offence her age was under 13 years. It is a question of fact to be decided by the court beyond reasonable doubt on the weight of the relevant evidence before it.'
In R v Raymond Puluhenue (Unrep. Criminal Case No. 33 of 1991) Muria J stated at pages 2 – 3:
'The defence however submitted that there is insufficient evidence to establish that the victim was at the time of the incident a girl under the age of 13 years. Mr. Remobatu submitted that the victim's evidence as to her age cannot be relied upon and it has no value as evidence of her own age. Counsel further argued that, equally the father's evidence of the victim's age cannot be relied on since he failed to produce the record in which he keeps the dates of birth of his children. Further counsel argued that the failure by the father to produce his note book deprived the defence the opportunity to cross – examine as to the authenticity of the entries in that note book. As such, counsel says, the father's evidence must be of little value.
In so far as the victim's evidence regarding her age, I would agree with counsel that such evidence can be of little value but only where the victim has no basis upon which she can reliably ascertain her age. It cannot be said that in all cases the victim's evidence as to her age must be disregarded as having no evidential value. In this case the victim's evidence of her age may well have little weight on its own but I cannot accept that her father's evidence about her age is of little or no value at all. In fact, it is to the contrary.'
See also: R v David Mani (Unrep. Criminal Case No. 13 of 1989; Ward CJ); Olomane v Director of Public Prosecutions [1990] SILR 114; The State v Peter Joseph Hayden [1976] PNGLR 509 at page 510 & Dwyer v Bridges, Ex parte Bridges, Dwyer v Brough, Ex parte Brough [1951] StRQd 90 at page 104.
[44.8] Similar Fact Or Propensity Evidence
The law relating to 'Similar Fact Or Propensity Evidence' is examined commencing on page 188.
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