Evidence of recent and delayed complaint

27.280 Complaint evidence is a type of prior consistent statement which is given by a witness or the complainant about when the complainant made their first report of sexual assault. The common law recent complaint rule only allows this type of evidence to be admissible if the complaint was made at the first reasonable opportunity after the alleged sexual assault. Further, it is only admissible for credibility purposes, that is, to bolster the credit of the complainant.[355] At common law, evidence of recent complaint cannot be used to prove the facts in issue—that is, whether or not the complainant consented or the defendant committed the alleged sexual conduct.

27.281 By the beginning of the eighteenth century, a failure to complain immediately had evolved into a presumption of fabrication on the part of the rape complainant.[356] Since the rule was based on ‘the belief that a rape complainant could only be believed if she could demonstrate she had publicly denounced the perpetrator, rape complainants became a special category of witness whose credibility could be boosted by evidence of recent complaint’.[357]

27.282 The common law’s approach to recent complaint evidence meant that evidence of delayed complaint was also considered to be relevant to credibility but for a different purpose—to undermine the complainant’s credibility. Evidence of delayed complaint is commonly used by defence counsel to argue that a complainant has falsely accused the defendant of sexual assault. This may be especially likely in a family violence context where, for example, there has been sexual abuse of a family member over a number of years.

Uniform Evidence Acts jurisdictions

Recent complaint

27.283 The recent complaint rule is no longer applicable in uniform Evidence Acts jurisdictions. In Papakosmas v The Queen, the High Court held that recent complaint evidence is relevant to the facts in issue in a sexual assault trial, for example, whether the complainant consented to have intercourse with the appellant.[358] In a child sexual assault trial, evidence of recent complaint is relevant to whether the defendant committed the act, since consent is not a fact in issue.

27.284 Evidence of a complainant’s recent complaint is caught by the exclusionary hearsay rule under s 59 of the uniform Evidence Acts. Evidence of the complaint may nevertheless be admissible under the first-hand hearsay exception, where the complainant is available to give evidence,[359] and the ‘fresh in the memory’ test is satisfied. Section 66(2) of the uniform Evidence Acts states:

(2) If a person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made;

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation (emphasis added).

27.285 The effect of s 66(2) was confirmed in Papakosmas v The Queen, in which evidence of recent complaint was held to be relevant to the issue of consent and to satisfy s 66(2).[360]

Delayed complaint

27.286 In Graham v The Queen, the High Court was required to consider the scope of the ‘fresh in the memory’ test under s 66(2). Instead of evidence of recent complaint, a witness had given evidence about the complainant’s disclosures made six years after the alleged sexual assault. The High Court held that the witness’ evidence was not admissible under s 66(2) because the complainant had not told her friend she was sexually abused by her father when the events were fresh in her memory. The High Court interpreted the word, ‘fresh’ to mean ‘recent’ or ‘immediate’ so that the lapse of time ‘will very likely be measured in hours or days, not, as was the case here, in years’.[361]

27.287 In ALRC 102, the ALRC, NSWLRC and VLRC recommended retention of the concept of ‘fresh in the memory’ under s 66(2) with an extension of the matters to be taken into account in determining what is ‘fresh in the memory’ to address the restrictive interpretation in Graham v The Queen. The Commissions concluded that ‘understanding of memory processes has progressed significantly’ since the uniform Evidence Acts were first introduced and ‘the law should reflect that knowledge’.[362]

27.288 ALRC 102 recommended that a new sub-section should be inserted into s 66.[363] This recommendation was subsequently enacted, with some re-wording, as s 66(2A):

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:

(a) the nature of the event concerned, and

(b) the age and health of the person, and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.[364]

Other modifications to the common law

27.289 Queensland, Western Australia and South Australia have enacted provisions that address some of the problems with the recent complaint rule at common law.[365] Queensland has enacted a specific provision that applies to the admission of out-of-court statements in sexual assault trials. Section 4A(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) states:

Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.

27.290 This provision does not allow evidence of the content of the statement to be admissible, only evidence of how and when the statement was made—although it does allow this evidence to be admitted regardless of when the complaint was made. Admissibility is not dependent on the person being available for cross-examination.

27.291 However, evidence of a preliminary complaint admitted under s 4A(2) is still only relevant to the complainant’s credibility so that juries in Queensland will be instructed that they cannot use the evidence as proof of the facts in issue, such as lack of consent.[366] This means that Queensland has not abolished the common law recent complaint rule.

27.292 In Western Australia, a child-specific modification to the law on hearsay evidence was enacted in 1992.[367] Under s 106H of the Evidence Act 1906 (WA), the admissibility of out-of-court statements is left to the discretion of the judge, and is dependent on the child being available for cross-examination. The aim of the provision is to allow any statement made by a child to another person to be admissible in certain criminal trials, including child sexual assault trials.

27.293 In South Australia, a child-specific hearsay exception was enacted, after the 2006 Chapman review of rape and sexual assault laws.[368] A substituted s 34CA of the Criminal Law Consolidation Act 1935 (SA) was intended ‘to facilitate the proof of sexual offences against children’.[369] The provision abolishes the recent complaint rule because out-of-court statements admitted under this provision can be used to prove the truth of the facts asserted.[370]

Evidence of delayed complaint

27.294 Hearsay evidence has been considered unreliable because the maker of the statement could not be cross-examined about its veracity. The position at common law is that hearsay evidence of delayed complaint will not be admissible, unless this has been amended by specific legislation.

27.295 The hearsay exception under s 66(2) of the uniform Evidence Acts overcomes this problem because the maker of the statement (the complainant) is available to give evidence and to be cross-examined about the complaint as long as he or she is competent to give evidence. The relevance of evidence of delayed complaint ‘is not to compete with the quality of the complainant’s evidence but to illustrate the context in which she made her disclosure and the reasons for any delay’.[371]

27.296 The psychological literature shows that delay is the most common characteristic of both child and adult sexual assault.[372] Significantly in the context of this Inquiry, the ‘predictors associated with delayed disclosure’[373] reveal differences in reporting patterns depending upon the victim’s relationship with the abuser. For example, where the victim and defendant are related, research suggests there is a longer delay in complaint.[374] Since complainants are routinely cross-examined by defence counsel about delays in complaint in ways that suggest fabrication, ‘it is likely that evidence about a complainant’s first complaint would answer the type of questions that jurors can be expected to ask themselves’.[375]

27.297 In uniform Evidence Acts jurisdictions, s 66(2) will, in some cases, permit the admission of evidence of delayed complaint where the occurrence of the events was ‘fresh in the memory’ of the complainant. In other cases, the ‘fresh in the memory’ requirements will be a barrier to admissibility.

27.298 Evidence of delayed complaint may also be admissible under s 108 of the uniform Evidence Acts. The relevant part of this exception to the credibility rule[376] provides that the credibility rule does not apply to evidence of a prior consistent statement of a witness if evidence of a prior inconsistent statement of the witness has been admitted; or there are suggestions that evidence given by the witness has been fabricated or reconstructed or is the result of a suggestion.[377] That is, where delay in complaint is used to impugn the credibility of the complainant, s 108 can be used to admit evidence about the complaint including, for example, the reasons for the delay in complaint and the surrounding circumstances.

Problems with the operation of s 66

27.299 Some commentators have identified the operation of s 66 of the uniform Evidence Acts as a problem in relation to evidence of delayed complaint. This view has been summarised by the National Child Sexual Assault Reform Committee as follows:

Trial and appellate judges may consider that a complainant’s representation is unreliable because of their young age at the time it was made, or because too much time has elapsed between the events in question and the preliminary complaint. Because s 66(2A) does not actually change the ‘recent’ or ‘immediate’ requirement imposed by Graham’s case it is unlikely that the amendment will have the effect of admitting evidence of delayed complaint, as a matter of course.[378]

27.300 One option to avoid the ‘fresh in the memory’ requirement would be to adopt the Queensland approach to evidence of delayed complaint. This would ensure that evidence of the content of, and the circumstances surrounding, a sexual assault complaint was admissible, regardless of the length of time between the complaint and the alleged sexual abuse. The Queensland approach recognises that the law has considered the time lapse between the assault and the making of a complaint as ‘evidence of truthfulness and fabrication, despite the fact that delay in complaint has been consistently found to be the most typical feature’ of sexual assault.[379]

27.301 Questions have been raised about whether ‘courts and judges are the appropriate forum and personnel to be making … assessments’ about the quality of a witness’ memory.[380] If there are issues of reliability, options for reform could be to ensure that a complainant is available to be cross-examined about their out-of-court statements and that courts are able to give appropriate warnings to the jury.

Submissions and consultation

27.302 In the Consultation Paper, the Commissions asked whether federal, state and territory legislation should provide that, where complainants in sexual assault proceedings are called to give evidence, the hearsay rule does not apply to evidence of a preliminary complaint, regardless of when the preliminary complaint was made.[381]

27.303 Cossins submitted that because of ‘the different approaches in WA, Queensland, SA, Victoria and the [uniform Evidence Acts] to out-of-court disclosures made by a child about being sexually abused, there is a need to bring consistency to this area of evidence law’.[382]

27.304 Cossins recommended that new provisions be inserted into s 66 of the uniform Evidence Acts providing that, if a person is a complainant in a child sexual assault trial and has been or is to be called to give evidence, the hearsay rule does not apply to evidence of a preliminary complaint given by that person or a person who saw, heard or otherwise perceived the preliminary complaint being made regardless of when the preliminary complaint was made.[383] Common law evidence jurisdictions should, in her view, enact a provision based on that in Queensland,[384] with modifications to overcome present limitations regarding the admissibility of evidence of a child’s complaint of sexual abuse.[385]

27.305 A number of other stakeholders agreed that evidence of preliminary complaint should be more readily admissible.[386] The Victorian Aboriginal Legal Service submitted that the hearsay rule should not apply to evidence of a preliminary complaint, regardless of when the preliminary complaint was made. The NSW ODPP stated:

We are supportive of complaint evidence being admitted in the Crown case as part of the narrative to put the complainant’s actions in context, in line with the Queensland provision, in all cases. In some cases, depending on the facts it may still be appropriate to admit the evidence as hearsay.[387]

27.306 Other stakeholders opposed any special exception to the general rules of evidence applicable to preliminary complaints in sexual assault proceedings.[388] The Law Council agreed that ‘a general proposition that children often delay in making complaint does not make evidence of the complaint inherently more reliable than in-court evidence, the usual justification for exceptions to the hearsay rule’.[389] National Legal Aid submitted that allowing evidence of a disclosure to be admitted ‘as truth of the substance of that disclosure, in circumstances where the disclosure is lacking in detail and was made when the accuracy of the complainant’s recollection may already have been affected by the passage of time, would be improperly prejudicial to an accused’.[390]

Commissions’ views

27.307 The Commission is not convinced that a strong enough case has been made for reform of s 66 of the uniform Evidence Acts to create an exception for the evidence of child or other complainants in sexual assault proceedings. The possibility of such a reform was considered, but not pursued, by the ALRC, the NSWLRC and VLRC in their 2005 report reviewing uniform evidence law.[391]

27.308 It has been argued that the ‘fresh in the memory’ requirement under s 66 can mean that, for example, when a jury warning is given regarding the forensic disadvantage suffered by the defendant as a result of a delay in complaint, evidence of when the complaint was made, what was said and the reasons for delay may be ‘technically inadmissible in examination-in-chief’.[392]

27.309 This can mean that evidence about the delay is left to the defence to raise during cross-examination, ‘leaving the jury with an inaccurate impression about the reasons for the complainant’s delayed disclosure and, unless addressed during re-examination, an incomplete account of why, when and how the complainant made her first complaint’.[393]

27.310 One option to address these concerns would be for legislation to provide that, where complainants in sexual assault trials are called to give evidence, the hearsay rule does not apply to evidence of a preliminary complaint, regardless of when the preliminary complaint was made. The mechanism for reform would be amendment of s 66 of the uniform Evidence Acts in those jurisdictions. In other jurisdictions, reforms could be enacted in criminal procedure legislation relating to sexual offences.

27.311 Such a reform may be criticised, however, for attempting to amend an exception to the hearsay rule to address concerns primarily about attacks on the credibility of complainants in sexual assault cases. The Consultation Paper noted that evidence of a long delayed complaint is not inherently more reliable than in-court evidence (the usual justification for exceptions to hearsay rule).[394] It can be seen as wrong in principle to retain s 66 generally, while creating a special exception for complainants in sexual assault proceedings.

27.312 Cossins submitted that this objection to reform of s 66 fails to ‘understand the importance and relevance of evidence of a child’s preliminary or first complaint’.[395] In her view, it is necessary to recognise the value judgments used when assessing the relevance of such evidence. This value judgment should be:

informed by the knowledge that children typically delay disclosure of sexual abuse [which] means that evidence of a child’s delayed disclosure, together with the circumstances in which it was made and the trigger for the disclosure (for example, [disclosure] to the child’s mother when a child does not want to be baby-sat by the offender) satisfies the relevance test under s 55 of the [uniform Evidence Acts] because it rationally affects the assessment of the probability of the existence of a fact in issue, namely whether the accused committed the alleged sexual abuse.[396]

27.313 On the other hand, the hearsay rule is not concerned with the relevance of evidence, but with its reliability according to the proposition that the ‘best evidence available’ to a party should be received. The concept of ‘best available evidence’ can be seen to involve two elements—the quality of the evidence and its availability. Reasons to do with the quality of evidence led to a distinction being drawn between statements made while relevant events were ‘fresh in the memory’ and statements which were not.[397]

27.314 Another factor dictating against a specific recommendation for reform is that there may not have been enough time to establish whether s 66(2A) of the uniform Evidence Acts has had any impact on the admission of evidence of delayed complaint.[398] This amendment to the uniform Evidence Acts was intended, in part, to address ‘special difficulties’ with the ‘fresh in the memory’ criterion in sexual offence cases[399] and only came into operation in January 2009.

27.315 The ALRC, VLRC and NSWLRC, in ALRC 102, recommended that in order to ensure the ‘maintenance of harmonisation over time and the general effectiveness of the uniform Evidence Acts’, Australian governments should consider initiating a joint review of the uniform Evidence Acts within 10 years from the tabling of the Report.[400] This would be an appropriate time to review the operation of s 66(2A).

[355] History of the law of recent complaint is found in D McDonald, ‘Gender Bias and the Law of Evidence: The Link between Sexuality and Credibility’ (1994) 24 Victoria University of Wellington Law Review 175; S Bronitt, ‘The Rules of Recent Complaint: Rape Myths and the Legal Construction of the “Reasonable” Rape Victim’ in P Easteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (1998) .

[356] J Gobbo, Cross on Evidence (1970), 245.

[357] A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 141.

[358]Papakosmas v The Queen (1999) 196 CLR 297, 309.

[359] The complainant is the person who made the previous representation and is available to give evidence about the asserted fact, the asserted fact being a fact that a person (who made a previous representation) intended to assert by the representation: s 59. In a sexual assault trial, the complainant is the Crown’s chief witness who, if competent, is available to give evidence.

[360] Three of the complainants’ work colleagues were able to give evidence not only of the complainant’s crying and distressed state after emerging from the ladies’ toilets but also of her statements to them that ‘Papakosmas raped me’. This particular statement was held to fall within s 66(2) because the complainant had informed her work colleagues about being sexually assaulted by the accused almost immediately after the events in question so that the ‘fresh in the memory’ requirement was satisfied: Papakosmas v The Queen (1999) 196 CLR 297, 300–301.

[361]Graham v The Queen (1998) 195 CLR 606, 608.

[362] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), 253. ALRC Report 102 noted research showing that ‘while focusing primarily on the lapse of time between an event and the making of a representation about it might be justifiable in relation to memory of unremarkable events, the distinct and complex nature of memory of violent crime indicates that the nature of the event concerned should be considered in deciding whether a memory is “fresh” at the relevant time. The assessment of “freshness” should not be confined to time’: Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [8.120].

[363] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), Rec 8–4. In ALRC 84, the ALRC and HREOC recommended that evidence ‘of a child’s hearsay statements regarding the facts in issue should be admissible to prove the facts in issue in any civil or criminal case involving child abuse allegations, where admission of the hearsay statement is necessary and the out-of-court statement is reasonably reliable’: Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), Rec 102, [14.78]–[14.72].

[364] The amending legislation in Tasmania (Evidence Amendment Bill 2008 (Tas)) had not been passed at the time of writing.

[365] For a more comprehensive review of modification to the common law relating to recent and delayed complaint evidence, see: A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 141–145.

[366]R v RH [2005] 1 Qd R; R v GS [2005] QCA.

[367] This provision was enacted to implement the recommendations of the Western Australian Law Reform Commission, Report on Evidence of Children and Other Vulnerable Witnesses (1991). See also RPM v The Queen [2004] WASCA, [46].

[368] L Chapman, Review of South Australia Rape and Sexual Assault Law: Discussion Paper (2006), prepared for the Government of South Australia.

[369] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1449 (M Atkinson—Attorney-General, Minister for Justice, Minister for Multicultural Affairs).

[370]Criminal Law Consolidation Act 1935 (SA) s 34CA(3).

[371] A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 147.

[372] For a review of this literature see Ibid, 86–97; D Lievore, Non-Reporting and Hidden Recording of Sexual Assault: An International Review (2003), prepared for the Commonwealth Office of the Status of Women.

[373] A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 89.

[374] For example, see analysis in Ibid, 86–90.

[375] Ibid, 148.

[376] The rule that credibility evidence about a witness is not admissible: Uniform Evidence Acts, s 102.

[377] Ibid s 108.

[378] A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 150.

[379] Ibid, 150.

[380] Ibid, 151.

[381] Consultation Paper, Question 18–10.

[382] A Cossins, Submission FV 112, 9 June 2010.

[383] A preliminary complaint would be defined as any complaint other than the complainant’s first formal witness statement to a police officer or other qualified person given in relation to, or in anticipation of, criminal proceedings in relation to the alleged offence: Ibid.

[384]Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A.

[385] A Cossins, Submission FV 112, 9 June 2010.

[386] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

[387] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

[388] Law Council of Australia, Submission FV 180, 25 June 2010; Public Defenders and Prosecutors, Consultation, Sydney, 7 June 2010.

[389] Law Council of Australia, Submission FV 180, 25 June 2010.

[390] National Legal Aid, Submission FV 232, 15 July 2010.

[391] See Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [8.66]–[8.124].

[392] L Chapman, Review of South Australia Rape and Sexual Assault Law: Discussion Paper (2006), prepared for the Government of South Australia, 114.

[393] A Cossins, Submission FV 112, 9 June 2010.

[394] Consultation Paper, [18.223].

[395] A Cossins, Submission FV 112, 9 June 2010.

[396] Ibid.

[397] See Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [7.10]–[7.13].

[398] Law Council of Australia, Submission FV 180, 25 June 2010.

[399] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [8.75].

[400] Ibid, Rec 2–3.