Citation: R v James Duncan SMITH [2009] NSWDC 410
Court: District Court of New South Wales
Date: 11 May 2009
Judge(s): Cogswell SC DCJ
Background
The accused faced charges of sexual assault. The most recent alleged offence occurred on 1 January 2005, and the complainant was not interviewed by police until 25 June 2007, a gap of approximately two and a half years. No evidence of any complaint to other persons during that period was before the jury, although it was common ground that such material existed and had simply not been tendered.
The trial judge had initially intended to direct the jury on the apparent absence of complaint. Before doing so, the prosecution raised an objection grounded in s 294 of the Criminal Procedure Act 1986, which governs the warnings a judge must and must not give in sexual assault proceedings where evidence tends to suggest an absence of or delay in complaint.
The defence, for its part, argued that the circumstances justified a warning to the jury that the delay in complaining was relevant to the complainant's credibility, particularly in light of gaps in her memory and the frequency and duration of the alleged offending.
Legal Issues
- Whether the evidence at trial triggered s 294 of the Criminal Procedure Act 1986 in the absence of direct cross-examination of the complainant about her delay in complaining.
- Whether there was "sufficient evidence" within the meaning of s 294(2)(c) to justify a warning that delay in complaint was relevant to the complainant's credibility.
- What "credibility" means in the context of s 294(2)(c): whether it refers narrowly to the truthfulness or fabrication of an allegation, or more broadly to a witness's general reliability, including powers of memory and observation.
Decision
The trial judge found that s 294 was engaged even without direct cross-examination of the complainant on the topic of delay. The approximately two-and-a-half-year gap between the last alleged offence and the police interview was itself evidence that "tends to suggest" an absence of or delay in complaint, satisfying the threshold in s 294(1).
The defence submitted that "credibility" in s 294(2)(c) should be read broadly, consistently with the definition in the Evidence Act 1995, which encompasses a witness's ability to observe and remember facts. On this approach, the complainant's acknowledged memory difficulties and the length of time before she reported to police would have provided sufficient evidence to justify the warning.
The trial judge rejected that submission and accepted the Crown's narrower construction. Referring to the historical rationale behind the law on recent complaint, the judge observed that concerns about delay in complaint have always been tied to the risk that a late complaint is false or fabricated, not merely unreliable due to imperfect memory. The definition of "credibility" in the Evidence Act was acknowledged but treated as a definition confined to that Act's own purposes.
Because there was no evidence connecting the complainant's delay to the possibility that her allegation was false or fabricated, and because the complainant had not been cross-examined on that basis, there was insufficient evidence to justify a warning under s 294(2)(c). The judge declined to give the warning.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 294(1) of the Criminal Procedure Act 1986, the section is engaged not only by direct cross-examination about a delay in complaint but also by evidence in the trial that otherwise tends to suggest an absence of or delay in complaint, such as a significant gap between an alleged offence and a police interview.
- The District Court held that "credibility" in s 294(2)(c) bears a narrow meaning, confined to whether the complainant's allegation is false or fabricated, rather than the broader definition of credibility found in s 3 of the Evidence Act 1995 (which includes a witness's capacity to observe and remember).
- A warning that delay in complaint is relevant to a complainant's credibility requires sufficient evidence connecting that delay to the possibility of a false or fabricated allegation; general evidence of memory gaps or imperfect recollection does not satisfy that threshold.
- The historical foundation of the law on delay in complaint, traced through Kilby v The Queen (1973) and Graham v The Queen (1998), is the assumption that a victim who fails to complain at the first reasonable opportunity may be making a false subsequent complaint; that foundation informed the court's interpretation of s 294(2)(c).
- Where common ground exists that complaint material was made but not tendered, and where the complainant was not cross-examined to suggest her delay indicated fabrication, s 294(2)(c) operates to prohibit the warning regardless of other credibility-related evidence.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 294
- Evidence Act 1995 (NSW), s 3
Cases
- Kilby v The Queen (1973) 129 CLR 460
- Graham v The Queen (1998) 195 CLR 606