4.9.1 - Bench Notes
Overview
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Evidence of a complainant’s “distress” during or shortly after an alleged sexual offence may be admitted as circumstantial evidence that independently supports the complainant’s evidence (R v Redpath (1962) 46 Cr App R 319; R v Flannery [1969] VR 584; R v Sailor [1994] 2 Qd R 342; R v Tubou [2001] NSWCCA 306; R v Mathe [2003] VSCA 165; R v Shillings [2003] NSWCCA 272).
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The law concerning distress evidence developed at a time when judges were generally required to warn juries about the dangers of convicting the accused on the uncorroborated evidence of victims of sexual offences. Judges are now prohibited from directing the jury about the need for corroboration (Evidence Act 2008 s164). For this reason, many decisions about distress evidence must now be approached with caution.
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Distress can now be relied upon as independent circumstantial evidence of the accused’s guilt. Evidence of distress may also be admitted, not because it is relied upon, but because it forms part of the res gestae.
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If evidence of distress is admitted, parties may seek directions about the caution to be exercised in using that evidence.
Distress Evidence as Circumstantial Evidence
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Distress evidence is a form of circumstantial evidence, with similarities to post-offence conduct evidence (Flora v R [2013] VSCA 192).
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Distress evidence may be used as circumstantial evidence where it is reasonably open to the jury to infer that there was a causal connection between the alleged offending and the distress (Flora v R [2013] VSCA 192).
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Distress evidence may also form part of the narrative when evidence is led of a previous complaint. Such evidence may support the matter described in the complaint, because it is a common human experience that the recounting of a stressful experience can be accompanied by outward indications of distress (see R v G [2005] NSWCCA 306).
Independent Evidence
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The probative value of distress evidence is likely to be slight or non-existent where it is given only by the complainant. The value of such evidence is intrinsically linked with the complainant’s credibility, and likely adds little to the complainant’s account. At common law, distress evidence was incapable of providing corroboration unless it was given by an independent witness who observed the distress (see Eades v R [2001] WASCA 329; R v Meyer [2007] VSCA 115).
Probative Value of Distress Evidence
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For distress evidence to be relevant, it must be reasonably open for the jury to infer that there was a causal connection between the offence and the distress (Flora v R [2013] VSCA 192).
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As distress is a form of circumstantial evidence, this inference will not be open to the jury if the connection between the alleged offending and the observed distress is too remote or tenuous (R v Link (1992) 60 A Crim R 264; R v Schlaefer (1984) 12 A Crim R 345; R v Roissetter [1984] 1 Qd R 477). See also Bench Notes: Circumstantial Evidence.
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This inference may also not be open to the jury where there are multiple possible causes of the observed distress. To be admissible, it must be open to the jury to reasonably infer that the alleged offending, rather than some other matter, caused the distress (R v Flannery [1969] VR 586; R v Mathe [2003] VSCA 165; R v McNamara [2002] NSWCCA 248. But c.f. R v Schlaefer (1984) 12 A Crim R 345; R v Link (1992) 60 A Crim R 264).
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However, evidence of distress is not rendered inadmissible simply because of competing theories as to its cause. As with evidence of incriminating conduct, other competing causes are relevant to weight not relevance, unless the evidence is ‘intractably neutral’. It is rare that distress evidence will be intractably neutral, as items of circumstantial evidence must be considered in the context of all the evidence in the case (Flora v R [2013] VSCA 192. See also R v Ciantar (2006) 16 VR 26; R v Rogers [2008] VSCA 125; R v Mitrovic [1999] SASC 478).
No Need for Evidence to Unequivocally Establish Identity or Guilt
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As long as it is open for the jury to find a causal connection between the complainant’s distress and the alleged offending, and the evidence is capable of supporting the complainant’s account in a material particular, the jury may use distress evidence even if:
It does not establish the identity of the accused (R v Major & Lawrence [1998] 1 Qd R 317); or
It does not point unequivocally to the accused’s guilt (R v Taylor (2003) 8 VR 213; Doney v R (1990) 171 CLR 207; R v Berrill [1982] Qd R 508).2
Evaluation of Distress Evidence
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Circumstance which a jury may wish to take into account when evaluating distress evidence include:
The age of the complainant;
The interval between the alleged offence and the observed distress;
The conduct and appearance of the complainant between the alleged offence and the observed distress; and
The circumstances at the time of the observed distress (see R v Flannery [1969] VR 586).
Timing of Observed Distress
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The probative value of distress evidence diminishes rapidly with time. This is because the greater the interval there is between the alleged offending and the observed distress, the greater the risk that the distress was caused by something other than the alleged offence (R v Sailor [1994] 2 Qd R 342; R v BM [2005] VSCA 260; R v Link (1992) 60 A Crim R 264).
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A time may eventually be reached when the only way to establish a connection between the observed distress and the alleged offending is by relying on the complainant’s own evidence about the cause of his/her distress. In such a situation, the distress evidence will likely have no probative value (as the complainant cannot support his/her own account) (R v Sailor [1994] 2 Qd R 342).
Complainant Not Aware of Observation
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The probative value of distress evidence is higher when the complainant is not aware that s/he is being observed (R v Redpath (1962) 46 Cr App R 319).
Distress When Making a Complaint
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At common law, special difficulties arose where distress was observed when the complainant was making a complaint. This was because it was often difficult to establish that the distress was caused by the offending, rather than by the process of making a complaint, and the common law did not allow the jury to use the complaint itself as evidence of the offence (R v Sailor [1994] 2 Qd R 342; R v Flannery [1969] VR 586; R v Redpath (1962) 46 Cr App R 319).3
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Under the Evidence Act 2008, the assertions in a complaint can be used as evidence of the offence. In some cases, it is permissible for the jury to use the complainant’s distress when making a complaint to evaluate the evidence of the complaint itself. The distress evidence would then be circumstantial evidence supporting the truthfulness of the complaint (see R v G [2005] NSWCCA 306; MLB v R [2010] NTCCA 11; Flora v R [2013] VSACA 192).
Directions to the Jury
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The need for a direction on distress depends on whether a direction is sought or whether there are substantial and compelling reasons to give a direction in the absence of any request (Jury Directions Act 2015 ss14, 15, 16). See Bench Notes: Directions Under Jury Directions Act 2015 for information on when directions are required.
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While there is no fixed verbal formula for the directions required in relation to distress, many previous directions were influenced by the use of distress evidence as corroboration (see R v Roissetter [1984] 1 Qd R 477).
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While the jury should be invited to consider other possible causes of the distress, the judge does not need to direct the jury that such causes must be excluded beyond reasonable doubt before it can use evidence of distress (Jury Directions Act 2015 s61; R v Rogers [2008] VSCA 125 per Nettle JA). Distress, like other forms of circumstantial evidence, must be viewed within the totality of the case.
Weight of the Evidence
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The question of what weight, if any, is to be given to evidence of distress is a matter for the jury (R v Rogers [2008] VSCA 125).
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At common law, it was commonly appropriate to warn the jury that evidence of distress usually carries little weight. More recently, courts have recognised that the value of distress evidence varies with the circumstances of the case and that jurors may not require a direction that distress can be feigned or related to other considerations. The need for directions on the value of distress will depend on what directions are sought and on the circumstances of the case (Jury Directions Act 2015 ss14, 15; R v Hakeem [2009] VSCA 131; LAL v R [2011] VSCA 111; Luha v Police [2012] SASC 17; Flora v R [2013] VSCA 192; c.f. R v Flannery [1969] VR 586).
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If the complainant’s distress was observed well after the alleged offending, then it may be appropriate to warn the jury that such evidence generally carries less weight than evidence of distress at the time of the offending (R v Brdarovski [2006] VSCA 231).
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If the complainant’s distress was observed when s/he was making his/her complaint, it may be appropriate to warn the jury that such evidence generally carries less weight than if the distress was observed in other contexts (R v Flannery [1969] VR 586; R v Redpath (1962) 46 Cr App R 319; c.f. R v PJG [2005] NSWCCA 306).
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If especially weak or ambiguous evidence of distress is admitted, the jury may need to be warned to examine the evidence very closely before accepting the evidence, and even then to proceed with care (R v Brdarovski [2006] VSCA 231).
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A warning on the limited weight of distress evidence may not be necessary where there is evidence suggesting a strong causal connection between the alleged offending and the distress (R v Redpath (1962) 46 Cr App R 319; R v McDougall [1983] 1 Qd R 89; R v Beaver (1979) 1 A Crim R 50; Eades v R [2001] WASCA 329; Browne v R WASCA 15/7/1998).
Distress Evidence and Recent Complaint Evidence
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At common law, it was necessary to instruct the jury about the separate uses of evidence of distress and evidence of recent complaint. This was because the two classes of evidence were different and must be used in different ways (see R v Roach [1988] VR 665; R v Brdarovski [2006] VSCA 231).
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The need for this distinction does not arise under the Evidence Act 2008. Both distress evidence and the making of a recent complaint can be used in proof of the offence (see Evidence Act 2008 s66).
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