Page 660 - Magistrates Conference 2019

R. v D, 2008 WL 4657244 (2008)

Very often, women who are raped within relationships feel ashamed of what's happened. They themselves feel the shame.
Although they have nothing to be ashamed about, because they are the victim, that's the reaction. They feel ashamed of what's
happened. They are often too traumatised or embarrassed to tell anyone what's going on, and a very serious aspect of the offence
in those circumstances is that a woman feels trapped. She is, after all, in her own home, very often simply too ashamed and
embarrassed to tell anyone that the person that she has brought into her home to share her life, be with her children, is now
raping her. She won't tell her neighbours, friends× even very close friends×children, still less the police, because of those factors
which bring to bear.

So it's against that background that you may wish to consider the question: why D didn't complain about being raped when
it started. You were asked that question by Mr. Jackson. He made it a significant point in his speech, didn't he? He said: ask
yourselves, use your commonsense. Why, when all these police are in the house, is she not saying: "Oh, by the way, he's been
raping me for some time now"? Bear in mind how you would feel if you were in her situation about suddenly saying "Oh, by
the way, I've been raped". This is where you use your commonsense and your experience of life in determining that question,
because it's frequently said when women don't complain about rape: "well it's not true, because if it had been true they would
have been straight down to the police station hammering on the door, saying "I've been raped". But you may think it doesn't
work like that particularly if it's rape by someone you have loved, as D says, still care about, to an extent, in your home, where
your children are living.

You say to yourselves: why didn't she complain? Well, what she said to you was that when the police were in her house there
were quite a lot of them. They were joking and wandering about, and she just didn't feel that she could speak to them. But
when P.C. Stephenson came along; you may think what she was saying there was something of a kindred spirit. There was a
sympathetic ear here. A young policeman, on his own, and she felt she had to say something. And why? You may conclude
it was as a result of the ferocity of that final attack. If what she has told you is true, it was a ferocious rape. She said at one
stage she was being smothered and thought that she might not survive. That's how bad she thought it was. The prosecution say
that's why she looked like she did when she saw Adam in the house, and that's what made her tell the police what was going
on, because in spite of her feelings for Mr D, and all that happened in the past, she was thinking that enough was enough.

It's for you to consider those points. If you think I have views about this with which you don't agree, you are entitled to disregard
those views. That is your privilege and prerogative."

7. Mr Shaw, on behalf of the appellant, submits that the judge, in this passage, went further than he was entitled to do by way
of comment, particularly as he had given no indication prior to his summing-up that he was intending to make these points. The
result, it is submitted, is that the summing-up was unbalanced and unfair. His comments, in particular, about forced sex within
a relationship were unnecessary and, in the contest of this case, irrelevant in that the appellant's case was that the sexual activity
was entirely consensual. Whilst he accepts that the judge was entitled to make some comment about the circumstances in which
the complaint was ultimately made, he failed to balance that with the appellant's argument that she deliberately manufactured
her complaint of rape when she realised there was an opportunity to get rid of the appellant. Mr Shaw submits that on having
given, in some detail, reasons why the complainant might not have made a complaint at the first opportunity, he should, at least,
have reminded that jury that some women have been known to fabricate allegations of rape for their own purposes.

8. The Solicitor General, on behalf of the prosecution, submits that the judge was fully entitled to make the comments that he
did. Indeed she goes further, and submits that, in cases such as this, the judge should remind the jury of the particular trauma
associated with the offence of rape, and the fact that a woman may find it very difficult to pluck up the courage to report the
offence. She submits that, just as judges as a matter of course direct juries in the case of historic sexual abuse cases to the effect
that children may have great difficulty in being able to make any contemporaneous complaint, judges should do the same where
the complaint is an adult, bearing in mind in particular the general understanding now of the effects of rape. She has referred
us to s. 294 of the New South Wales Criminal Procedure Act 1986 which provides as follows:

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