Page 661 - Magistrates Conference 2019

R. v D, 2008 WL 4657244 (2008)

"(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given when a question is asked
of a witness that tends to suggest:

(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged
to have been committed, or

(b) delay by that person in making any such complaint.

(2) In circumstances to which this section applies, the judge:

(a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that
the offence was committed is false, and

(b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate about the assault, and

(c) must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence
to justify such a warning."

9. The Solicitor General has also referred us to material which is made available to judges and recorders at the Judicial Studies
Board seminars on trials in serious sexual cases. These include material relating to the psychological effects of serious sexual
assaults collated by Dr Fiona Mason, and the script of the lecture given to the participants by His Honour Judge Peter Rook QC
in May of this year. The latter included the following suggested comment in cases where the issue of delay in, or absence of,
reporting of the alleged assault is raised by a defendant as casting doubt on the credibility of the complainant:

"Experience shows that people react differently to the trauma of a serious sexual assault. There is no one classic response. The
defence say the reason that the complainant did not report this until her boyfriend returned from Dubai ten days after the incident
is because she has made up a false story. That is a matter for you. You may think that some people may complain immediately
to the first person they see, whilst others may feel shame and shock and not complain for some time. A late complaint does not
necessarily mean it is a false complaint. That is a matter for you."

10. The Solicitor General therefore submits that the judge, albeit doing so in more extensive and emphatic terms, was merely
underlining to the jury by way of comment a matter which was clearly relevant to their considerations. He did not, she submits,
go beyond that which was permissible.

11. In our view, there is merit in the submissions from both parties. The judge is entitled to make comments as to the way
evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an
appropriate warning. This was the reasoning behind the directions suggested in Turnbull in relation to identification, and Lucas
in relation to the treatment of lies. We think that cases where a defendant raises the issue of delay as undermining the credibility
of a complainant fall into a similar category save clearly that the need for comment is in this instance to ensure fairness to the
complainant. But any comment must be uncontroversial. It is no part of the judge's task to put before the jury Dr Mason's learning
without her having been called as a witness. However, the fact that the trauma of rape can cause feelings of shame and guilt
which might inhibit a woman from making a complaint about rape is sufficiently well known to justify a comment to that effect.
The suggested direction in paragraph 9 above provides an example in very general terms of an appropriate form of directions
which should be tailored to the facts of the case. In the present case, the judge was entitled to add to that general comment, the
particular feelings of shame and embarrassment which may arise when the allegation is of sexual assault by a partner. He was
also entitled to remind the jury of the way in which the complaint in fact emerged, as explained by the complainant herself.

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