Evidence of a contemporaneous complaint by the complainant to her employer was admitted against objections that such evidence ought not to be admitted and the evidence should be confined merely to the fact of the complaint. The evidence of the complaint was similar to the complainants.
Held: As to the objection in principle to the admission of such evidence: ‘It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint not on oath nor made in the presence of the prisoner nor forming part of the res gestae can be admitted. It is clearly not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, and as being inconsistent with her consent to that of which she complains. In every one of the old textbooks, proof of complaint is treated as a most material element in the establishment of a charge of rape or other kindred charge. . . It is too late, therefore now to make serious objection to the admissibility of evidence of the fact that a complaint was made, provided it was made as speedily after the acts complained of as could reasonably be expected.’ He then proceeded to consider whether it was only the fact of the complaint that should be admitted: ‘We proceed to consider the second objection, which is that the evidence of complaint should be limited to the fact that a complaint was made without giving any particulars of it. No authority binding on us was cited during the argument, either in support of or against this objection. We must therefore determine the matter upon principle.’ After setting out the authorities, he concluded: ‘After very careful consideration, we have arrived at the conclusion that we are bound by no authority to support the existing usage of limiting evidence of the complaint to the bare fact that a complaint was made, and that reason and good sense are against our so doing. The evidence is admissible on the ground that it was a complaint of that which is charged against the prisoner and can be legitimately used only for the purposes of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness-box negativing her consent, and affirming that the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her. The jury, and they only, are the persons to be satisfied whether the woman’s conduct was so consistent or not. Without proof of her condition, demeanour and verbal expressions, all of which are of vital importance in the consideration of that question, how is it possible for them satisfactorily to determine it? Is it to be left to the witness to whom the statement is made to determine and report to the jury whether what the woman said amounted to a real complaint? And are the jury bound to accept the witnesses’ interpretation of her words as binding upon them without having the whole statement before them, and without having the power to require it to be disclosed to them, even if they may feel it essential to enable them to form a reliable opinion? . . In reality, affirmative answers to such stereotyped questions as these ‘Did the prosecutrix make a complaint (a very leading question by the way) of something done to herself? Did she mention a name?’ amount to nothing to which any weight ought to be attached; they tend to embaEvidence of a contemporaneous complaint by the complainant to her employer was admitted against objections that such evidence ought not to be admitted and the evidence should be confined merely to the fact of the complaint. The evidence of the complaint was similar to the complainants.
Held: As to the objection in principle to the admission of such evidence: ‘It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint not on oath nor made in the presence of the prisoner nor forming part of the res gestae can be admitted. It is clearly not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, and as being inconsistent with her consent to that of which she complains. In every one of the old textbooks, proof of complaint is treated as a most material element in the establishment of a charge of rape or other kindred charge. . . It is too late, therefore now to make serious objection to the admissibility of evidence of the fact that a complaint was made, provided it was made as speedily after the acts complained of as could reasonably be expected.’ He then proceeded to consider whether it was only the fact of the complaint that should be admitted: ‘We proceed to consider the second objection, which is that the evidence of complaint should be limited to the fact that a complaint was made without giving any particulars of it. No authority binding on us was cited during the argument, either in support of or against this objection. We must therefore determine the matter upon principle.’ After setting out the authorities, he concluded: ‘After very careful consideration, we have arrived at the conclusion that we are bound by no authority to support the existing usage of limiting evidence of the complaint to the bare fact that a complaint was made, and that reason and good sense are against our so doing. The evidence is admissible on the ground that it was a complaint of that which is charged against the prisoner and can be legitimately used only for the purposes of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness-box negativing her consent, and affirming that the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her. The jury, and they only, are the persons to be satisfied whether the woman’s conduct was so consistent or not. Without proof of her condition, demeanour and verbal expressions, all of which are of vital importance in the consideration of that question, how is it possible for them satisfactorily to determine it? Is it to be left to the witness to whom the statement is made to determine and report to the jury whether what the woman said amounted to a real complaint? And are the jury bound to accept the witnesses’ interpretation of her words as binding upon them without having the whole statement before them, and without having the power to require it to be disclosed to them, even if they may feel it essential to enable them to form a reliable opinion? . . In reality, affirmative answers to such stereotyped questions as these ‘Did the prosecutrix make a complaint (a very leading question by the way) of something done to herself? Did she mention a name?’ amount to nothing to which any weight ought to be attached; they tend to embarrass rather than to assist a thoughtful jury, for they are consistent either with there having been a complaint or no complaint of the prisoner’s conduct. To limit the evidence of complaint to such questions and answers is to ask the jury to draw important inferences from imperfect materials, perfect materials being at hand and in the cognizance of the witness in the box. In our opinion, nothing ought unnecessarily be left to speculation.’ The court went on to make it clear that a direction was to be given as to the purpose for which the evidence was admissible.rrass rather than to assist a thoughtful jury, for they are consistent either with there having been a complaint or no complaint of the prisoner’s conduct. To limit the evidence of complaint to such questions and answers is to ask the jury to draw important inferences from imperfect materials, perfect materials being at hand and in the cognizance of the witness in the box. In our opinion, nothing ought unnecessarily be left to speculation.’ The court went on to make it clear that a direction was to be given as to the purpose for which the evidence was admissible.
Judges:
Lord Russell of Killowen CJ, Hawkins J
Citations:
[1896] 2 QBD 167
Cited by:
Cited – Spooner, Eric Charles v Regina; (Evidence: Sex abuse) CACD 25-May-2004
The defendant appealed his convictions for child sex abuse, involving assault, rape and buggery, saying that evidence of a recent complaint by a schoolgirl friend of the complainant which was not consistent with other evidence of the complainant . .
Cited – White v The Queen PC 10-Aug-1998
(Jamaica) Where a rape complainant gave evidence to support the prosecution that she had complained of the offence immediately afterwards, the court should be careful to direct the jury of the caution to be applied to the weight given to that . .
Cited – Regina v Braye-Jones 1966
(Queensland Court of Criminal Appeal) The admissibility of evidence of recent complaint where the evidence of the complainant and the evidence of the contemporaneous complaint differed. Rejecting the suggestion that evidence of the contemporaneous . .
Cited – Regina v Beedles CACD 31-Jul-1996
The defendant appealed against his conviction for sexual assault. The issue was whether a note written by the complainant to her teacher was admissible as evidence of recent complaint to corroborate her statement. Similar allegations had been made . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 30 April 2022; Ref: scu.198130