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. 294 "Warning to be given by Judge in relation to lack of complaint of certain sexual offence proceedings (1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest: (a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or (b) delay by that person in making such complaint. (2) In circumstances to which this section applies, the Judge: (a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation of the offence that was committed is false, and (b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and (c) must not warn the jury that a delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning. (3) However, if: (a) the delay in making complaint by the person on whom the offence is alleged to have been committed is significant, and (b) the Judge is satisfied that the person on trial for the offence has suffered a significant forensic disadvantage caused by that delay, and the Judge may inform the jury (but only if a party to the proceedings so requests) of the nature of the disadvantage and of the need for caution in determining whether to accept, or give any weight to, the evidence or question referred to in subsection (1). (4) For the purposes of subsection (3)(b), the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following: (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable. (5) The mere passage of time is not in itself to be regarded as establishing a significant forensic disadvantage. 3 This application is made under subsection (2)(c). The defence says there is sufficient evidence to justify a warning that the complainant's credit may be affected by the delay in complaint. 4 The evidence before me is that the alleged sexual assaults, which fall within the prescribed section, or some of them at least, began in about 1995 and continued until the complainant left the accused's home in March 2004. There is evidence that during that period she lived in the household with her aunt DC, and at least until 2003, her cousin KC. She had a close relationship with both of them, especially her aunt. She had a number of close friends, including one LM, whom she saw frequently. She never complained to any of them until she spoke to LM some time after she left the house. The defence says that she could reasonably be expected to have complained to at least one of those people. 5 There is also evidence that while she was still at high school, she spoke to a school counsellor about a number of matters. Early in 2004 she spoke to a social worker at Camden Hospital. She did not complain to either of these people about sexual assaults when at school, although she did complain about the repressive and restrictive approach on the part of her uncle, the accused. 6 After the events giving rise to count 15, to which the accused has pleaded guilty, the complainant went to the Camden police station and made a complaint about the assault. Later she withdrew this complaint, because, on her evidence, she knew this could have serious consequences for the accused's career in the Police Force, and because of her affection for him and her aunt. She said she did this at the request of family members, although DC denies discussing the matter. 7 The evidence is that in May 2004 she did complain to her partner BH, and to some of her friends, about the sexual assaults, but she did not make a formal complaint to the police until the end of 2005. The officer-in-charge, Senior Constable Lea, is now a member of the police Internal Affairs Unit and I am sure the police took a great deal of care in the investigation of the matter. The accused did not know the complainant had made any allegations about him until he was arrested in September 2006. 8 Counsel for the defence says that because the complainant had the opportunity to complain to a number of people, to whom a reasonable person might be expected to complain, her failure to do so reflects adversely on her credit. I have no doubt that at common law this delay may well have required a warning but, as I have said, the law has now changed. Her evidence is that she decided, after the accused for the first time had penile-vaginal sexual intercourse with her, that she would accept sexual assaults as part of her life and would keep it entirely within her. She did not complain to anybody until she had left the accused's house and was living with her partner, or at least was in a secure relationship with him. 9 She also gave evidence, and this is corroborated by the evidence of the accused's wife, that he had become cranky. He has pleaded guilty to one assault on her, although there is a dispute about the facts of that assault. She alleges another assault where he kicked her and attempted to strangle her. She gave evidence that she believed her aunt was completely dominated by her uncle. She gave evidence that after she left the home she tried to persuade her aunt to leave the accused and share accommodation with her but the aunt refused. The accused's wife corroborated this. 10 All this evidence is consistent with the fear that the complainant said she had of the accused. 11 These matters of explanation for the delay, in any event, must be put to the jury in the course of directions because of section 294(2)(a) and (b). 12 The jury must also be directed that because the evidence of the complainant is the only evidence of a number of essential elements of the offences charged, they, the jury, must regard this evidence with special scrutiny. This, of course, is a warning that must be given in any case where the evidence of the complainant is the only evidence of any essential element of an offence charged. In addition, in this case the decision of the Court of Criminal Appeal in Markuleski, to which I have referred, requires that the jury be told that if they do not accept the complainant's evidence in respect of one count charged, they should be cautious about accepting it in respect of any other. 13 The Crown concedes that the delay in bringing these matters to trial has resulted in a substantial forensic disadvantage to the accused. The complainant has been unable to recall specific dates and times at which the matters alleged have occurred. For this reason the accused has not been able to produce evidence of an alibi nature and certain records, in particular relating to the date upon which the complainant took a holiday with LM's family and the dates and times when his wife DC was working, have been lost or destroyed and the jury must be warned of those disadvantages. These warnings are clear warnings to the jury that, first, the accused is at a significant forensic disadvantage, and secondly, that, for a number of reasons, they must scrutinize the evidence of the complainant in respect of each count on the indictment very carefully. 14 They must also be warned that because this is a criminal trial, the Crown bears the burden of proof of every essential element of each charge. Therefore, if the Crown cannot satisfy them of such matters beyond reasonable doubt, they must acquit the accused. They must not simply balance the evidence adduced by the Crown against that given by the accused and the witnesses he has called. 15 My conclusion is that in respect of the evidence upon which the defence application is based, the law already requires that the jury be warned to treat the complainant's evidence with special caution. Any specific warning in relation to her credit is therefore superfluous and the evidence produced is not sufficient to justify any such warning. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.