SB v R [2020] NSWCCA 207

SB v R [2020] NSWCCA 207 · Read the judgment on AustLII

Catchwords: Complaint evidence – Not ‘independent’ evidence of the allegation – Evidentiary basis of admitting complaint

In this decision the Court of Criminal Appeal (‘CCA’) has held that evidence of complaint is not ‘independent’ of the complainant. To the extent that the Criminal Trials Bench Book had a recommended direction to that effect, it was wrong.

The appellant was convicted at trial of a range of sex offences relating to his daughter. About four months after the last allegation (and about three years after the first one), the complainant told her mother and her mother’s new partner about the allegations. Her mother told police, and proceedings were commenced. There was also a body of expert evidence on behalf of the Crown, including from a psychologist to the effect that it is quite common for children to delay before disclosing sexual abuse.

As part of the summing up, the trial judge directed the jury that the complaint evidence was ‘some evidence independent of the evidence given to you of that incident by [the complainant]’. That form of words (that is, including the reference to the ‘independence’ of the complaint) were consistent with the suggested directions in the Judicial Commission Criminal Trial Bench Book.

That was a small part of a summing-up that apparently spanned 47½ pages. Of those pages, the CCA counted that about 14½ pages of it were summaries of material from the prosecution case (specifically, Crown’s expert evidence). In contrast, only a single paragraph of the summing was directed to summarising the evidence in the defence case.

The appellant was convicted and appealed upon two grounds: that it was an error to direct the jury that the evidence of the complaint was ‘independent’ evidence; and that the summing-up was not fair and balanced.

In dealing with the ground relating to the ‘independent’ evidence complaint, the CCA (Rothman J, Button J agreeing; Hamill J agreeing with some brief additional comments) started by considering the legislative basis for the admission of complaint evidence. As a result of s 60 of the Evidence Act, complaint evidence is evidence of the truth of the complaint. Depending on the circumstances, there are a variety of potential routes to admissibility of complaint evidence, and its admissibility is affected by many different provisions. Amongst them, ss 66, 102, and 164 of the Evidence Act and (where its purpose is to explain delay in complaint) s 294 of the Criminal Procedure Act) (at [118]-[119]). But whatever by the basis of the admissibility of the complaint evidence, it does not cease to be hearsay evidence (at [120]). And it is not ‘independent’; its value and validity depends upon the truthfulness or accuracy of the complainant (at [113]). High Court authority makes clear that evidence of complaint is neither corroborative nor independent of the complainant. The Bench Book direction is [was – see below] wrong in referring to complaint evidence as being independent (at [127]). However, the judge had also used the form of words from the Bench Book to the effect that repetition of a complaint does not make it true, accurate, or reliable – albeit that comment was somewhat disconnected in the summing up from what the judge had said about the independence of complaint (at [129]). Nevertheless, that further warning issued by the judge meant that the erroneous use of the term ‘independent’ did not result in a miscarriage of justice – and this ground of appeal therefore failed. However, the use of the term ‘independent’ in this context should be avoided in the future (at [130]).

Practitioners should note that the offending reference to ‘independence’ has already been removed from the online version of the Bench Book – but practitioners will still need to be watchful in case judicial officers are using old printed versions of it, or if they are generating their own directions on complaint. The case also highlights why it is important, during the course of complaint evidence, for the prosecution to identify the specific issue to which the complaint evidence is directed: is it led to show that the complainant reacted in a way that was consistent with what would be expected, is it led to show that the complainant was consistent in their allegation, or for some combination of these and other purposes?

Ultimately the appeal was allowed on the other ground of appeal: the CCA found the summing up was unbalanced and unfair and led to a miscarriage of justice (having regard to the significant disparity between what was summarised in the prosecution case as against that in the defence case), and the matter was remitted for a re-trial.