Matters which have a sexual component is arguably one of the most difficult areas of criminal law. We don’t mean to diminish the gravity of other crimes, but offences which feature a sexual element can be particularly fraught especially for a complainant who must navigate a number of hurdles when the courts are dealing with their matter. When a person is making a complaint regarding a sexual matter, there are many important elements involved in the adducing of the evidence, and whether a complaint is valid under certain circumstances.
Evidence of a recent complaint in a sexual matter
When evidence of a sexual matter is put forward before the courts, a recent complaint made by a person is admissible in order to demonstrate consistency in conduct, however, evidence is not admissible in the illustrating of the absence of consent. In R v Knigge, Winneke P in the Victorian Court of Appeal said:
“It has long been the law that evidence of a complainant made at the earliest reasonable opportunity by the alleged victim of a sexual assault is admissible, not as proof that the crime alleged was committed, but as evidence buttressing the credit of the complainant by demonstrating consistency in her conduct and consistency of the evidence given in court.”
Evidence and inconsistency
When a complainant is adducing evidence generally speaking it must be consistent with the complaint which is made, and if there is inconsistency the courts may not consider the evidence admissible. The joint judgment in R v Freeman provides further context in regards to a complaint which is inconsistent with the evidence – as well as the challenges of evidence and consistency in such matters:
“Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another… The ultimate question must always be does the “complainant”, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.”
A complaint made in a sexual matter must be a complaint related to the issue
It may seem obvious that a complaint made regarding a sexual matter must be a complaint which is relevant to the issue at hand, however, in Knigge the Victorian Court of Appeal had to address the issue of whether the nature of the conversations had by the complainant with her teacher in regards to her daily activities amounted to a complaint of sexual abuse. Winneke P said:
“I would myself doubt whether the evidence… was evidence of a complaint at all within the meaning of that term. Rather, it seems to me to have been in the nature of general discourse between the complainant and the witness about events of day to day activities… which had occurred many months before at the complainant’s house. As it seems to me the statements… scarcely resemble a complaint of a grievance harboured by the complainant that she had been sexually abused.”
However, it is important to point out that the duties of a complainant in sexual cases do not apply equally to a child and an adult as noted by Kellam JA in R v HRA:
“Even though the authorities establish that a mere narrative of events which were stated to have occurred may not be sufficient to be seen as a complaint, the question must be determined bearing in mind and giving proper weight to the circumstances that the complainant is a young and immature child, not an adult. It cannot be expected that the response of a small child to a sexual assault will be same as that of an adult.”
When must a complaint in a sexual matter be made?
Some readers may understandably be confused as to what is the appropriate length of time when a complaint should be made with the cases referred to in this piece so far placing an emphasis on complaints made which were recent in relation to the matter, however, the question should be asked: What is considered as a ‘recent complaint’ according to the law?
There is no universal formula as to what constitutes a recent complaint, and as the Freeman case illustrates regarding consistency, is that each individual case differs from one another – and this is no different when assessing whether or not a complaint is recent.
In considering whether a complaint is recent, the courts may take into account factors such as the age and experience of the complainant, as well as any opportunities arising which allows for a person to make a complaint.
However, if a complaint is made regarding a sexual matter and the courts have deemed the complaint to relatively late, in recognition of some of the difficulties that may arise for an accused to raise a defence – such as lack of opportunity and raising an alibi – it is for these reasons, that a judge may have to direct a jury on the lateness regarding the complaint as stated by the Court of Criminal Appeal of Tasmania in Bellemore v Tasmania.
We should however highlight that legislation does exist across all jurisdictions which states that judges are to generally refrain from directing a jury that just because there has been a delay in a complaint made, does not signify that the evidence is false, because there may be a reasonable explanation for the delay. To illustrate the point, we can look to s 4A(4) of Queensland’s Criminal Law (Sexual Offences) Act which states:
“If a defendant is tried by a jury, the judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more reliable or less reliable only because of the length of time before the complainant made a preliminary or other complaint.”
This piece is by no means a comprehensive outline of the laws regarding complaints made in matters which are sexual in nature. Any person who has any issues or inquiries should always seek the assistance of a legal practitioner regarding their matter.
