Citation: R v KSC (No 2) [2008] NSWDC 172
Court: District Court of New South Wales
Date: 30 June 2008
Judge(s): Goldring DCJ
Background
The accused faced trial on multiple counts of sexual assault. The alleged offences involved a complainant who had lived in the accused's household, and the conduct was said to have begun around 1995 and continued until she left the home in March 2004. The accused had separately pleaded guilty to one count of assault.
The complainant did not disclose the sexual assaults to those around her during the period they were alleged to have occurred, including family members and close friends with whom she had regular contact. She did not make a formal complaint to police until late 2005, and the accused was not arrested until September 2006.
During the trial, the defence applied for a judicial direction telling the jury that the complainant's delay in complaining was relevant to her credibility.
Legal Issues
- Whether, under s 294 of the Criminal Procedure Act 1986, there was sufficient evidence to justify a direction to the jury that the complainant's delay in complaint was relevant to her credibility
- What warnings were required or permitted given the delay and the resulting forensic disadvantage to the accused
- How the mandatory warning obligations under s 294(2) interacted with the discretionary credibility warning sought by the defence
Decision
At common law, a direction linking delay in complaint to a complainant's credibility was common and arguably required following statements in R v Kilby and R v Fuller. However, the court noted that this principle had been doubted in the High Court in R v Suresh and by the Court of Criminal Appeal in R v Markuleski. Critically, the law had since changed: s 294 of the Criminal Procedure Act 1986, which came into operation at the beginning of 2007, now governs the position.
Under s 294(2)(c), a judge must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning. The defence argued that the complainant had ample opportunity to complain to family members, close friends, a school counsellor, and a social worker, and that her failure to do so reflected adversely on her credit. The court was not persuaded this was sufficient.
The complainant had given evidence that she had resolved, following the first penetrative assault, to accept what was happening and keep it entirely to herself. There was also evidence of fear of the accused, corroborated by his wife's evidence about his behaviour, and evidence that the complainant had initially withdrawn a police complaint out of concern for the accused's career. The court found this evidence consistent with her explanation for the delay.
The court concluded that the jury would already receive strong warnings requiring them to scrutinise the complainant's evidence carefully. These included a direction about the lack of evidence corroborating essential elements, a Markuleski direction about caution where one count is not accepted, and a direction about the forensic disadvantage suffered by the accused through lost records and the inability to mount alibi evidence. A specific credibility warning in relation to delay was therefore superfluous and the evidence did not meet the threshold in s 294(2)(c).
Orders Made
- The defence application for a jury direction that delay in complaint was relevant to the complainant's credibility was refused.
Key Takeaways
- Under s 294(2)(c) of the Criminal Procedure Act 1986, a trial judge must not direct a jury that delay in complaint affects a complainant's credibility unless there is sufficient evidence to justify that specific warning, displacing what was previously a common direction at common law.
- The District Court held that a complainant's explanation for delay, including fear of the accused and evidence of psychological accommodation of ongoing abuse, can form part of the factual matrix assessed when determining whether the credibility warning threshold is met.
- Section 294(2)(a) and (b) require a judge to direct the jury that absence of complaint or delay does not necessarily mean the allegation is false, and that there may be good reasons why a victim hesitates to complain.
- Where the Crown concedes forensic disadvantage caused by delay, including lost records and the inability to mount alibi evidence, the jury must be warned of those specific disadvantages under s 294(3), but only if a party requests it and only where the delay is significant and the disadvantage substantial.
- A credibility warning regarding delay may be rendered superfluous where other mandatory directions already require the jury to scrutinise the complainant's evidence with special care, such as a Markuleski direction and a warning about uncorroborated essential elements.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 294
Cases
- R v Kilby (1973) 129 CLR 460
- R v Fuller [2001] NSWCCA 390
- R v Suresh (1998) 72 ALJR 769
- R v Markuleski (2001) 52 NSWLR 82