The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 12 of 1998

 

Kory White Appellant

v.

The Queen Respondent

 

FROM

 

THE COURT OF APPEAL OF JAMAICA

 

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REASONS  FOR  REPORT  OF  THE  LORDS

OF  THE  JUDICIAL  COMMITTEE  OF  THE

PRIVY  COUNCIL  OF  THE   27th  July  1998,

Delivered the  10th August 1998

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Present at the hearing:-

Lord Goff of Chieveley

Lord Lloyd of Berwick

Lord Nolan

Lord Hoffmann

Lord Hope of Craighead

  ·[Delivered by Lord Hoffmann]

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1. On 27th July 1998 their Lordships indicated that they would humbly advise Her Majesty that the appeal should be allowed and the conviction set aside and that they would deliver their reasons later.  Their Lordships now set out the reasons for the decision which they have reached.

 

2. This is an appeal from a judgment of the Court of Appeal of Jamaica of 27th January 1997 (Gordon J.A. and Walker J.A.(Ag.), Rattray P. dissenting) dismissing an appeal from convictions for rape and attempted buggery before Harrison J. and a jury.  The principal ground of appeal is that the judge did not give the jury adequate directions about how they should treat the complainant’s evidence that she had made several statements shortly after the incident to various people, telling them what had happened.

 

3. The case for the prosecution rested entirely upon the uncorroborated evidence of the complainant Keisha Anderson.  At the time of the incident she was 19 and the appellant was 20.  In early May 1994 they met on a street corner where he engaged her in conversation and gave her his telephone number.  She rang the appellant a couple of days later.  Afterwards they spoke again and arranged to meet at the house of her best friend Kerry.  On 19th May 1994 the appellant arrived by car and she says that he offered to take her and Kerry on some errands which they were proposing to make.  Kerry then dropped out of the expedition because she was engaged on the telephone and the complainant went alone.  She says that the appellant then drove in an unexpected direction and went to his house, where he invited her in.  They went into a bedroom and sat on the bed watching television.  Then he tried to kiss her and when she resisted, assaulted her sexually and then raped and tried to bugger her.  Her panties were damaged in the struggle.  Afterwards she got into the car and let him drive her back to Kerry’s house.

 

4. Their Lordships must now go into some detail about the evidence of what happened after the incident.  The complainant said that she was crying in the car on the way back.  The appellant dropped her off.  Kerry and her helper were there. Prosecuting counsel then asked:-

 

“Q.Did you speak to either of these persons?

 

 A.Well I spoke to Kerry eventually after ... After I reached the house I told her about half an hour after.

 

 Q.Told her what?

 

 A.What had happened.”

 

5. After having a shower, she then went home.  Examination in chief then proceeded as follows:-

“Q.Apart from Kerry did you speak to anyone else?

 

 A.Yes, I did.

 

 Q.Who was this

 

 A.My aunt.

…

 Q.You recall when it was that you spoke to her?

 

 A.At about after ten o’clock. When I came she was watching the television.

…

 Q.What you spoke to your aunt about?

 

 A.I told her what happened.

 

 Q.Apart from Kerry and your aunt did you speak to anyone else?

 

 A.Well, I told my mother and father in the morning.

 

 Q.Did you ever report this matter to the police?

 

 A.Yes I did.

 

 Q.Do you recall when this was?

 

 A. 21st of May.  A Saturday.

 

 Q.Which police was this?

 

 A.Mr. Walters.

 

 Q.Did you speak to any other police officer apart from Mr. Walters?

 

 A.Mr. Puddie.

 

 Q.When was it that you spoke to the other policeman Mr. Puddy?

 

 A. The same evening of the incident.

 

 Q.Did you ever see any female police officer at any time?

 

 A.Police at the Rape Unit.  I spoke to her Friday.”

 

6. She also said that on the same Friday she was examined by a doctor.

 

7. Apart from Mr. Walters, the investigating officer to whom the complainant had made a statement on Saturday 21st May, none of the five other people (Kerry, her aunt, her parents and Mr. Puddy) to whom she claimed to have reported the incident was called as a witness.  Nor was the doctor.  The damaged panties were not produced.

 

8. In cross-examination, defence counsel commented upon the absence of witnesses to verify the evidence of complaint or distress.  The complainant was also asked about why she had not gone to the Rape Unit until 4.00 p.m. on the day after the incident:-

 

“Q.Now Keisha, you never made no report to the Rape Unit until perhaps four o’clock the day after the incident. Isn’t that so? …

 

 A.Yes.

 

 Q.And did you of your own accord decide to report the matter to the police or were you advised to do so?

 

 A.I was advised.

 

 Q.And you were busy on the morning after the incident?

 

 A.No, I was not busy.

 

 Q.You just could not find the time and you had been raped.

 

 A.Not that I did not find the time, I just did not have the courage then.

 

 Q.But you had spoken to this gentleman the same afternoon?

 

 A.That is correct.

 

 Q.You got courage enough to tell him?

 

 A.Yes.”

 

9. There the matter was left.  At no time did defence counsel object to the introduction of the evidence of the various statements to third parties.

 

10. The appellant gave evidence in his own defence.  He agreed on the circumstances in which they had originally met and the subsequent assignation at Kerry’s house, but said that she came voluntarily to his house and that they had intercourse by consent, after which he took her back to Kerry’s house.

 

11. Mr. Small, who appeared for the appellant, submitted that the evidence of the five complaints was inadmissible. It was excluded by the rule against proof of previous self-consistent statements.  As a formulation of this rule, their Lordships adopt the following statement in Cross and Tapper on Evidence (8th edn. 1995) at p. 294:-

 

“The general rule at common law is that a witness may not be asked in-chief whether he has formerly made a statement consistent with his present testimony.  He cannot narrate such statement if it was oral or refer to it if it was in writing (save for the purpose of refreshing his memory), and other witnesses may not be called to prove it.”

 

12. There are two well-known common law exceptions to this rule.  The first permits proof of complaints in sexual cases. If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent.  But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made.  If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negativing consent.  As Casey J. said in giving the judgment of the New Zealand Court of Appeal in Reg. v. Kincaid [1991] 2 N.Z.L.R. 1, 9:-

 

“The immediate question is - ‘How is one to know she is a truthful girl telling of her complaint?’ The answer - that her own assertion that she did complain will help the jury to assess her truthfulness - needs only to be stated to be recognised for its logical absurdity. Without independent confirmation of what she said, the girl’s own evidence-in-chief that she complained takes the jury nowhere in deciding whether she is worthy of belief.  The doctrine of ‘recent complaint’ in sexual cases allowing the prosecutor to adduce evidence of a prior complaint is not to be confused with the rule allowing recourse to such a statement in order to rebut a specific charge of recent [invention].”

 

13. Similarly the Court of Appeal of Jamaica has recently held in Reg. v. Fletcher (unreported) (25th November 1996; Criminal Appeal No. 20 of 1996) that where the recipient of the complaint did not give evidence, there was “no evidence which could be regarded as falling within the category of a recent complaint”.  It was a misdirection for the judge to have told the jury that the complainant’s own evidence that she had “made several reports to certain persons”, though not corroboration, could be used to show consistency and negative consent. Since the prosecution case was based entirely upon the credibility of the complainant, the misdirection was a grave one.

 

14. The other common law exception, to which Casey J. alluded at the conclusion of the passage from Reg. v. Kincaid which their Lordships have cited,  is that a witness may testify to an earlier consistent statement to rebut an imputation that his evidence is a recent invention.  In Fox v. General Medical Council [1960] 1 WLR 1017, 1025, Lord Radcliffe said:-

“If in cross-examination a witness’s account of some incident or set of facts is challenged as being a recent invention, thus presenting a clear issue as to whether at some previous time he said or thought what he has been saying at the trial, he may support himself by evidence of earlier statements by him to the same effect.  Plainly the rule that sets up the exception cannot be formulated with any great precision, since its application will depend on the nature of the challenge offered by the course of cross-examination and the relative cogency of the evidence tendered to repel it.  Its application must be, within limits, a matter of discretion ...”  

 

15. Lord Radcliffe observed that there were few reported instances of the rule being successfully invoked, perhaps because, as Dixon C.J. said in The Nominal Defendant v. Clements (1961) 104 C.L.R. 476, 479:-

 

“… inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it.  The judge at the trial must determine for himself, upon the conduct of the trial before him, whether a case for applying the rule of evidence has arisen and … must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid … but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.”

 

16. Mr. Andrade Q.C., Director of Public Prosecutions, Jamaica, who appeared for the Crown, did not contend that evidence of previous statements would have been admissible under either of these exceptions and their Lordships agree.  They would not have been admissible as evidence of  sexual complaints because the recipients had not been called and they were not admitted to rebut a suggestion of recent invention because they were given in chief before any such suggestion could be made.  The nearest defence counsel came to making such a charge in cross-examination was the passage their Lordships have cited when the complainant was asked why she had not gone earlier to the Rape Unit.  But the learned judge plainly never exercised a discretion as to whether to admit the evidence under this exception and since he had no detailed evidence of what the complainant had said, he had no material upon which to decide whether it was likely to rebut such an allegation or not.

 

17. Mr. Andrade’s submission, which was accepted by the majority in the Court of Appeal, was that the complainant’s evidence did not infringe the rule against previous self-consistent statements because she did not relate the actual terms of her complaints.  She merely said that she had told Kerry, her aunt, her parents and Mr. Puddy “what had happened”.  This, said Gordon J.A. “has no evidential value ... The prosecution gained no advantage and the defence suffered no harm”.

 

18. Their Lordships accept that when the complainant herself is giving evidence, it may be difficult for her to give a fair and coherent account of her behaviour after the incident without allowing her to mention that she spoke to other people who may not be available to give evidence (within the sexual complaints exception) of what she actually said.  Their Lordships would not suggest that the mere mention that the witness spoke to someone after the incident was inadmissible.  In most cases it will be very difficult to draw any rational distinction between consistent conduct, which is plainly admissible (e.g. that the witness wept) and the fact that she spoke to someone such as a parent.  On the other hand, it is important to avoid infringement of the spirit of the rule against previous self-consistent statements by conveying indirectly to the jury that she had given a previous account of the incident in similar terms with a view to inviting the jury to infer, not merely that her subsequent conduct was not inconsistent with her complaint but that her credibility was actually supported by the fact that she had told the same story soon after the incident.

 

19. In the present case their Lordships think that the prosecution probably went further than could be justified by the need to allow the complainant to give a fair account of her conduct after the incident.  In the absence of a ruling by the judge that the questions could be asked because of an imputation of recent invention, she should not have been allowed to say that she had told five people “what had happened”.  The inference which the jury were bound to draw was that she had made statements in terms substantially the same as her evidence to the court.  In the context of the hearsay rule, courts have discouraged its evasion by devices such as that described by Hawkins J. in Reg. v. Lillyman [1896] 2 QB 167:-

 

“… the very object of confining the evidence of the complaint to the few stereotyped questions we have referred to is often defeated by a device, not to be encouraged, by which the name of the accused, though carefully concealed as an inadmissible particular of the complaint, is studiously revealed to the jury by some such question and answer as the following:

‘Q.  In consequence of that complaint did you do anything?

 

 A.Yes, I went to the house of the prisoner’s mother, where he lives, and accused him.’

 

20. This seems to us to be an objectionable mode of introducing evidence indirectly, which if tendered directly would be inadmissible.”

 

21. The apparent approval of this kind of device by Lord Goddard C.J. in Reg. v. Wallwork (1958) 42 Cr. App. R. 153, 162 was convincingly criticised by Sir Rupert Cross in (1958) 74 Law Quarterly Review 352.

 

22. While therefore their Lordships do not go so far as to say that the evidence of the fact that statements were made was inadmissible, they consider that the admission of that evidence made it necessary for the judge to give the jury a careful direction about the limited value which could be attached to it.

 

23. This makes it necessary to consider the summing up in rather more detail.  The judge correctly directed the jury that the complainant’s evidence was uncorroborated, that it was dangerous to convict upon uncorroborated evidence but that “if you really believe what Keisha Anderson told you, if you accept that she is speaking the truth and you feel sure on all the material facts, you may act on her evidence”.  He then reminded the jury of the evidence in narrative sequence, including the series of complaints following the report to the police:-

 

“She was still in tears and in a temper, she says, and told Kerry about what had happened.  She said she had a shower and disposed of her underwear, went home and spoke to her Aunt, Carey Robinson, and told her what had happened.  The following morning she said she went and spoke to her mother and told her what had happened and she went and made a report at the Rape Unit.  But before going to the Rape Unit she called her friend and neighbour, Mr. Puddy, a police officer, and told him, the very evening of this incident, what had taken place …

 

24. But she told Kerry her friend, about what took place and she did tell Mr. Puddy, a man whom she has known over a number of years living across the street from her, she did tell him that.

 

25. A comment I make here, Mr. Foreman and members of the jury, if you believe that she spoke to her aunt, she spoke to her mother, she did not say anything about her father.  Counsel for the Crown says her father is aging.  She went to Mr. Puddy, she went to him, someone whom she knows.  Why didn’t you go to the police earlier than you did?  That is the question she was asked. What was her response?  ‘I just never had the courage then, but I had enough courage to tell Mr. Puddy’.  It is a matter for you, how you deal with what she tells the defence attorney about not going immediately to the Rape Unit because she did not have the courage to do so.”

 

26. The judge then mentioned the fact that none of the recipients of the complaints had been called as witnesses, saying:-

 

“… she has done her part, she has told the police who were the ones whom she spoke to, again Mr. Foreman and members of the jury, can you blame her if there is any deficiency on the part of the police investigating this case?”

 

27. At the end of the summing up, at the request of the Crown, the judge reminded the jury that the fact that the complainant had made reports to other people did not constitute corroboration.  He also told the jury more than once not to speculate on matters on which there was no evidence.

 

28. The Crown draw attention to the fact that, unlike the case of Reg. v. Fletcher (supra) in which the judge told the jury that they could use the complainant’s own evidence of complaints to show consistency, the judge in this case gave no such direction.  Apart from telling the jury that it did not amount to corroboration, he gave no indication of what use could be made of the complaints. Their Lordships consider that in the circumstances of this case, that was insufficient.  The passages cited from the summing up would have indicated to the jury that the evidence about the complaints were in some way a relevant circumstance to be taken into account in assessing the complainant’s credibility, upon which the whole prosecution case depended.  On more than one occasion the jury had been told that it was a matter for them to decide whether the complaints had been made and whether it was plausible that they should have been made to some people but not to others.  They had been directed not to blame the complainant for the absence of evidence confirming the complaints, because this was a matter for the police.  The jury must therefore have considered that, having formed an opinion on these matters, they were entitled to put it to some use.  Quite what they would have made of the direction that the complaints did not constitute corroboration is hard to say, but this difficulty is also encountered in cases of admissible complaints, when the jury has to be instructed that the evidence is admissible to show consistency and negative consent but does not amount to corroboration.  As the jury had been told that even without corroboration they could convict if they believed the complainant’s evidence, there must have been a significant risk that they considered themselves entitled to regard the evidence of complaint as confirming her credibility.  To leave it open to the jury to take such a view was a misdirection. It was in their Lordships’ view incumbent upon the judge to give the jury clear instructions that the complainant’s own evidence was for this purpose of no value whatever.  If the judge thought it necessary to deal with the question of why she had not gone earlier to the Rape Unit, it would have been sufficient for him to tell the jury that they were entitled to take into account her explanation that she had lacked the courage to do so.

 

29. Since a direction that the complaint does not constitute corroboration has to be given even in cases in which it is admissible under the exception for sexual cases, their Lordships do not think that it was sufficient to deal with the situation in the present case. Their Lordships respectfully agree with Rattray P. when he said:-

 

“A most careful direction was required from the Learned Trial Judge which was not forthcoming.  To tell the jury that this evidence coming from the complainant is not corroboration cannot be sufficient, since indeed it is not evidence at all and the jury should have been told to disregard it.  In the circumstances of this particular case … the admission of the evidence without a clear direction to the jury from the Trial Judge to assist them as to its status, or lack of it, must indeed have been damaging to the appellant’s prospects at the trial.”

 

30. It may be that even without such evidence the jury would have preferred the evidence of the complainant to that of the appellant, but their Lordships think it quite impossible to say that this must inevitably have been the case.  As the case turned entirely upon the complainant’s credibility, it is not possible to apply the proviso.

 

© CROWN COPYRIGHT as at the date of judgment.