SUPREME COURT OF QUEENSLAND

1. McMURDO P: I agree with Thomas JA that, for the reasons he has given, the convictions on count 3 and 4 must be set aside and a retrial ordered.

2. The complainant's only contention as to the convictions on counts 1 and 2 turns on the adequacy of the judge's direction as to delay in making the complaint, set out in para [28] of Thomas JA's reasons. That direction is imperfect in that it does not include the direction ordinarily given, consistent with Kilby v The Queen,^[1] that lack of recent complaint is relevant to the credit of the complainant. The learned trial judge told the jury they were "entitled to take into account the delay and that there was no evidence of recent complaint". His Honour then reminded the jury that the complainant had given an explanation as to why she did not complain and invited them to "weigh that up", without specifically telling them that delay in complaining was relevant to her credit. The judge then gave a direction consistent with Longman v The Queen^[2] that delay can put at risk the fairness of the trial.

3. The omission of the Kilby direction does not mean there must be a new trial: M v The Queen,^[3] Crofts v The Queen,^[4] R v A^[5] and R v Rankin.^[6] In this case the complainant girl was only 13-14 years old and gave a plausible explanation for failing to complain about the appellant's behaviour, namely that he was friendly with her father and she did not wish to jeopardise that relationship because he was the only male friend she remembered her father having. Her explanation was not contested in cross-examination. The delay here was two to three years until complaint and two and a half to three years until trial compared to up to six years in Crofts and over 20 years in Longman. The warning given in the circumstances sufficiently highlighted to the jury the danger that delay made it more difficult for the appellant to defend himself. The judge's reference to the complainant's explanation for delay did not detract from that warning or make the summing-up unbalanced: cf Crofts.^[7] The summing-up emphasised that there could be no conviction on any charge unless the jury were convinced of the credibility of the complainant beyond reasonable doubt on that charge.

4. In the circumstances of this case I am not persuaded that the direction given by the learned trial judge as to delay constituted an error or resulted in a miscarriage of justice. I would refuse the appeal on counts 1 and 2.

5. I propose the following orders:

Appeal against conviction on counts 1 and 2 dismissed; appeal against conviction on counts 3 and 4 allowed; direct a retrial on counts 3 and 4.

6. DAVIES JA: I have had the advantage of reading the reasons for judgment of Thomas JA. I agree with his Honour's conclusion that the verdicts on counts 3 and 4 should be set aside and that there should be a new trial on each of those counts. I also agree with his Honour's reasons for that conclusion.

7. However I do not think that the verdicts on counts 1 or 2 should be set aside and I would dismiss the appeal on each of those counts. The only basis upon which it is arguable that those counts should be set aside is that the learned trial judge failed to give an adequate warning to the jury about the effect which the complainant's failure to complain about the appellant's conduct may have had upon her credit.

8. I accept that as a general rule, where, in a case of this kind involving charges of indecent treatment of a young person, the complainant makes no complaint about the alleged offender's conduct, the trial judge should give directions to the jury to the effect that:

1. the absence of a timely complaint is relevant to the complainant's credibility and to assist in evaluating the consistency of her evidence;

2. but that there may be many reasons to explain why no complaint was promptly made.

9. However in the present case such directions would have involved, rather than a statement that there may be many reasons for a failure to complain, a reminder to the jury of the explanation which the complainant in fact gave: the close friendship between her father and the appellant, the fact that this was the first time her father had formed a close friendship with a male person and her concern about the possibility of being responsible for breaking up that friendship.

10. In some cases an explanation given by the complainant for the absence of a timely complaint will overcome any doubt which might otherwise be thrown on the credibility of the complainant because of her failure to complain. In others it may go even further, evoking the jury's sympathy for the complainant's plight. Whether either or both of these occurs will depend on the explanation given, the manner in which the complainant gives evidence and the impression generally which she makes on the jury. Sometimes that may be apparent at or shortly after the time when the complainant gives evidence or at least may be perceived to be so by counsel representing the accused.

11. Where, as in this case, the complainant gives an explanation for her failure to complain which could have both of the consequences I have mentioned, the circumstances may be such as not to suggest the need for a warning to restore any balance of fairness. And concern that a direction of the kind which might appropriately be given would highlight the complainant's explanation and be prejudicial to the appellant is an explanation justifying his counsel's failure to seek a redirection. In those circumstances I do not think that the direction which was in fact given was unfair in the circumstances of this case.

12. For those reasons I would dismiss the appeal on counts 1 and 2.

13. THOMAS JA: The appellant was charged with and convicted of three counts of indecent treatment of a child under 16 and one of administering a stupefying drug with intent to commit an indictable offence. He was sentenced to 5years’ imprisonment.

14. The complainant (“S”) was aged between 13 and 14years at the time of the offences (said to have occurred in 1996 and 1997). She made no complaint against the appellant until January 2000, by which time she was 17years old. There was therefore a delay of between two and four years between the allegations and the making of a complaint.

15. The complainant and her family were close friends of the appellant and his family. In particular the complainant was friendly with the appellant’s stepdaughter and her father was a close friend of the appellant. Both families were members of the same church and they were frequent visitors to each other’s homes.

16. Count1 alleged that the appellant rubbed his hand around the pubic area of the complainant. Count2 made a similar allegation including a touching of the breasts. Count3 concerned an incident in which the appellant gave rohypnol to the complainant. Count4 alleged a ‘fingering’ of the complainant whilst she was affected by the drug.

17. The complainant’s account includes her sharing of confidences with the appellant in relation to her own sexual activity. The facts in relation to counts3 and 4 occurred during a visit by the complainant’s family to the appellant’s house for a dinner party. The appellant spoke to the complainant in the appellant’s stepdaughter’s room and asked her if she had ever tried the pill. The complainant indicated that she hadn’t, and would like to do so. The appellant returned with a handful of small white pills of which the complainant took seven or eight with water. She started to feel “a bit woozy” and later had trouble walking down stairs. She had little recollection until the following afternoon. Further evidence from other persons in the house supported the fact that the complainant appeared to be affected by a drug and could not walk properly. The appellant passed off her condition as the effect of inhalation of nail polish in a closed room. There was also evidence that the appellant had access to rohypnol, as his wife had a prescription for the drug.

18. The evidence in relation to count4 consisted solely of a “confession” made by the appellant to the complainant on the afternoon following the dinner party. While driving her to see his stepdaughter, he said “Oh, sorry about last night … I fingered you while you were passed out.”

19. The appellant did not give or call evidence. His counsel put to the complainant that he had not done the acts or made the confession that she alleged.

Issues

20. The original grounds of appeal were abandoned. In their place the appellant was given leave to argue the following grounds:

“A.The learned trial Judge erred in his directions to the jury on the effect of the delay in complaining on the part of the complainant.

2. The learned trial Judge erred in failing to direct the jury that in respect of the appellant’s alleged admission to the complainant of ‘fingering’ her, they must be satisfied beyond a reasonable doubt that the confession was made and that it was true.”

It will be convenient to deal with the latter issue first.

Directions re admission or confession

21. The only evidence to sustain count 4 was brief evidence from the complainant about a conversation she had with the appellant in his car the day after the alleged assault. It is to the following effect:

“He said ‘Oh sorry about last night’ and … I said ‘Well what about last night’, and he said ‘oh I fingered you while you were passed out’ and I told him that I didn’t remember any of that and he said ‘Sorry anyway’ and I go ‘Oh that’s okay’, because I didn’t know, I didn’t even think he had done anything because I don’t remember. He said ‘Just sorry anyway’”.

22. It does not matter whether this evidence is referred to as an admission against interest or a confession. In either case, especially where it is the only evidence to support aconviction, it is essential that the jury’s attention be drawn both to the issue whether the statement was made, and to the further issue whether it is reliable and may safely be acted upon. The need for directions requiring satisfaction that a confession is truthful and accurate before the jury should act upon it is recognised in Burns v The Queen.^[8]

23. It is true that in the present case we are not dealing with a confession made to the police, but with a statement made to the actual complainant. If anything this enhances the need for turning the jury’s attention to the question whether the statement was made in circumstances where it should be regarded as truthful and accurate. Consideration needed to be given to whether it might be an untrue statement made out of bravado, or to provoke a reaction, or for some other ulterior purpose.

24. No directions whatever were given to the jury on this important point. His Honour simply presented a very short summary of the complainant’s evidence of the conversation. No request was made for any redirection but the error was elementary and fundamental. The jury should have been directed that in order to convict on count 4 they must be satisfied beyond a reasonable doubt that the confession was made and that it was true.

25. The omission to do so makes it necessary that the conviction on count 4 be set aside. It also, in my view, compromises the conviction on count 3 (administering the drug with intent to commit an indictable offence). The element of intent to commit an indictable offence would naturally be inferred from satisfaction of guilt on count 4. If the jury incorrectly concluded that he should be convicted on count 4, the conviction on count 3 would in my view be unsafe. It was submitted that there was sufficient evidence concerning the earlier offences to justify a finding of the necessary intent without reference to the later events, and that the conviction on count 3 ought to remain notwithstanding the defect in the conviction on count 4. However as I see the matter the jury’s deliberations on count 3 are likely to have been affected by their satisfaction in relation to count 4, and it would be inappropriate to allow the conviction on count 3 to stand.

26. Thus far I would be disposed to set aside the convictions on counts 3 and 4 and to order that the appellant be retried on them. However it will be necessary to consider the position overall before determining what should be done in relation to each of the four counts.

Directions re late complaint

27. As already noted, no complaint was made until between two and four years after the alleged events.

28. The only relevant directions given on this subject were as follows:

“You are, of course, entitled to take into account the delay. There is no evidence before you that [S…] complained to anyone. She did tell you that she complained to her best friend but that evidence you must ignore because there is no evidence from the best friend that she did complain. You must proceed on the basis that she did not complain or there is no evidence that she complained. She has given an explanation as to why she did not complain and you can weigh that up.

Of course the delay is a factor that you can take into account if you see fit. Your own experience will tell you that the longer an allegation remains dormant, the more difficult it is for a person then to defend themselves against that allegation when it is finally made. These are all factors that as the jury, you are entitled to take into account.”

S’s explanation for not complaining sooner was the close friendship between her father and the appellant. She said that this was the first time her father had formed aclose friendship with a male person and she did not want to be responsible for breaking it up.

29. It is noteworthy that his Honour’s direction says nothing about any potential adverse effect upon the complainant’s credit by reason of the late complaint. His Honour had earlier indicated that he would give such a direction, but obviously overlooked the matter at the appropriate time. Such a direction is sometimes called a Kilby^[9] direction. In Kilby BarwickCJ said:

“It would no doubt be proper for a trial judge to instruct a jury in evaluating the evidence of a woman who claims to have the victim of a rape and in determining whether to believe her, could take into account that she had made no complaint at earliest reasonable opportunity. Indeed, in my opinion, such direction would not only be proper but, depending of course on particular circumstances of the case, ought as a general rule be given.”^[10]

In that case Barwick CJ rejected a submission that evidence of non‑complaint should be regarded as evidence of consent. His Honour went on to observe that “it does tell against the consistency of the woman’s account and accordingly is clearly relevant to her credibility in that respect”.

30. Many cases have discussed “recent complaint” evidence since Kilby. Some are concerned with its admissibility, and others with its relevance and the extent to which it needs to be the subject of special directions. Instructive cases include RvMurray,^[11] Mv The Queen,^[12] R v King,^[13] R v W,^[14] Crofts v The Queen,^[15] Jones v The Queen,^[16] Jones v The Queen,^[17] Suresh v The Queen,^[18] R v LSS,^[19] R v M^[20] and Rv A.^[21] In the present matter counsel for the Crown sought to rely upon certain comments of GaudronJ in M v The Queen at pp513‑515. In that case her Honour observed that the presumption that credibility of a complainant is adversely affected by failure to complain “is no longer generally seen as conclusive”. Her Honour referred to acommon direction that such a delay may be taken into account in evaluating the evidence of the complainant. Having referred to a New South Wales decision^[22] which holds that “at least as a general rule” the trial judge should direct the jury that absence of complaint or delay in complaining may be taken into account in evaluating the evidence of the complainant, her Honour went on to state “however, that is not a hard and fast rule and a conviction will not be set aside simply because there has not been a direction of that kind”. Her Honour highlighted the need for each case to be approached on its own facts rather than by reference to an assumption, particularly in a case involving a young victim who might for many reasons be reluctant to complain.

31. However in the later case of Crofts v The Queen the joint judgment of Toohey, Gaudron, Gummow and KirbyJJ suggests a recognition of something approaching aneed for the equivalent of a Kilby direction in cases where a significant delay is evident. The task of summing‑up in cases of this kind has in recent years been further complicated by the need for what is now known as a Longman direction^[23] in cases where the delay is so long that the difficulty of an accused in presenting a proper answer to it should be emphasised to the jury. Such directions have also needed to be reconciled with various statutory requirements such as s632 of the Code (Queensland) and s61 of the Crimes Act 1958 (Victoria) which prohibit the giving of directions that tend to brand particular categories of witness as unreliable.

32. The effect of the decision in Crofts seems quite clear. Although their Honours noted (as had BarwickCJ) that there might be many reasons to explain why a sexual complaint is not made promptly^[24] the final conclusion was that there is a “duty” to provide the warning suggested by Kilby subject only to two qualifications. The first is “where the particular facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness”; the second is that the warning, when given, should not suggest a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint is invariably a sign that the complainant’s evidence is false. Their Honours considered that the delay in that case (six months after the last offence and six years after the first) was “objectively substantial” and that delays of that order require the trial judge to give the jury adirection which is “meaningful” and adequate to enable the jury to make a responsible evaluation.^[25]

33. The question whether a good explanation can be seen to exist for the delay in question is a relevant factor for consideration by the jury. It is also a factor that may influence an appeal court in determining whether a conviction is unsafe and unsatisfactory. In Jones v The Queen^[26] the High Court noted the importance of a four‑year delay that had been left unexplained and that factor played a part in the court’s determination that the evidence overall was unsafe and unsatisfactory for the purpose of sustaining a conviction. Some further discussion of the relevance of late complaint may be found in Suresh^[27] but it centres mainly on the validity of the assumption that young complainants should be expected to complain early. Such matters are of course in the end matters for the jury and, without disagreeing in the least with what has been written, some of the more recent discussions of this topic contain views on factual matters which do not transpose readily into binding directions for trial judges. I have reservations about the desirability of imposing obligations upon trial judges to give particular directions on this subject at the risk of a re‑trial if they do not. The difficulty is that once one enters the arena it is difficult to know where to stop, especially in acase where an explanation has been offered for the delay. Is the summing‑up defective if a simple Kilby direction is unaccompanied by a discussion of any explanation that may be offered of the delay? If one mentions the explanation, is the summing‑up defective if the judge fails to mention the defence contention that the explanation is unconvincing, with reasons why the defence says so? In many cases such directions might give the question of early or late complaint an emphasis that it does not deserve, and which might upset the proper balance and perspective that agood summing-up attempts to achieve.

34. In my view any jury will naturally view a late complaint with suspicion or reserve, and if a reasonable explanation can be seen for it then the suspicion or reserve abates accordingly. It would be unfortunate if this area became overladen with judicial analysis and compulsory directions. That however does not detract from the need to give an elementary direction concerning the limited use of evidence of recent complaint^[28] or of late complaint^[29] as the case may be.

35. The recency or lateness of the complaint is only one of many criteria that may help persuade a jury whether evidence of the making of a complaint and the circumstances in which it was made helps the prosecution or the defence. I have previously suggested a number of ways in which such evidence, irrespective of whether it is late or early, may be of assistance to a jury.^[30] However the immediate problem is to determine the extent of the obligation upon a trial judge in the present state of the law to give at least a basic Kilby direction when the complaints are between two and four years late. As I see it, Crofts currently states the basic obligation, and it confines the exceptions to fairly narrow limits. Of course when there are patently good reasons to explain the lateness or absence of the complaint, it may be that although a failure to give such a direction is an error it will not be perceived to have led to a miscarriage of justice. Such matters will need to be determined from case to case.

36. In the end I have concluded that a Kilby direction should have been given and that neither of the exceptions or qualifications recognised in Crofts is here applicable. However, counsel for the appellant at no stage complained of the omission to give aKilby direction, and sought no relevant redirection.

37. In these circumstances, if this were the only defect in the trial I should, with some hesitation, be inclined to think that the error did not deprive the appellant of a chance of acquittal that was fairly open, and apply the proviso. However the error has to be seen in the context of the additional error which may have led to an erroneous conviction on counts 3 and 4. As there must be a re-trial on those counts, as the appellant was not given the benefit of a Kilby direction on any of the counts, and as all counts are in a real sense part and parcel of the one story, I consider it would be incorrect to apply the proviso in order to uphold convictions on counts 1 and 2. Itherefore consider it is appropriate to allow the appeal and to order a re-trial on all counts.

Orders

38. Appeal against conviction allowed; set aside convictions on counts 1 to 4; direct re-trial on all counts.