R v KSC (No 2) [2008] NSWDC 172

New South Wales District Court

CITATION: R v KSC (No 2) [2008] NSWDC 172

HEARING DATE(S): 16 June 2008 - 8 July 2008 - Trial

JUDGMENT DATE: 30 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Goldring DCJ

DECISION: Application by defence that the jury be given a direction that delay in complaint is relevant to the complainant's credibility refused.

CATCHWORDS: CRIMINAL LAW - Sexual Assault - Complaint - Evidence - credibility rule - evidence of complaint - delay in complaint

LEGISLATION CITED: Criminal Procedure Act 1986

R v Kilby (1973) 129 CLR 460 CASES CITED: R v Fuller (2001) NSW CCA 390 R v Suresh (1998) 72 ALJR 769 R v Markuleski (2001) 52 NSWLR 82

PARTIES: Crown KSC (Accused)

FILE NUMBER(S): 07/11/0861

COUNSEL: M O'Brien (Crown) P Boulten SC (Accused)

SOLICITORS: NSW DPP Hardinlaw

JUDGMENT

1 HIS HONOUR: The defence has made an application that I should give the jury a direction that the delay in complaint is relevant to the complainant's credibility. At common law such a direction was common, if it was not required by some dicta of the High Court. For example, Chief Justice Barwick CJ in Kilby (1973) 129 CLR 460, 465, and Heydon JA in Fuller (2001) NSW CCA 390 at paragraph 28. This principle has also been doubted, in the High Court by Gaudron and Gummow JJ in Suresh (1998) 72 ALJR 769, and by the Court of Criminal Appeal in Markuleski (2001) 52 NSWLR 82.

2 The law has now been changed. The relevant provision is now part of s294 of the Criminal Procedure Act. The provisions are quite clear. This particular provision was inserted recently and came into operation at the beginning of 2007. The whole of the section is relevant not only to this issue, but also to the directions as a whole that I must give the jury, and I propose to read it in full.