Jersey Unreported Judgments

[2003]JRC221

ROYAL COURT

(Samedi Division)

1^st December, 2003

The Attorney General

-v-

Joao Carlos Rodrigues Figueira

Criminal Assize.

Application re admissibility of evidence made in absence of Jury.

J. C. Gollop, Esq., Crown Advocate.

Advocate D. Gilbert for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        Objection has been made by Advocate Gilbert on behalf of the defendant to the evidence proposed to be given by four prosecution witnesses.  They relate to three separate complainants.

2.        The first objection is to the evidence proposed to be given by CEW relating to the complainant CM.  The second objection relates to evidence proposed to be given by JES in connection with a complaint of CAL.  And the remaining two witnesses, Mr MMC and Inspector Williamson relate to a third complainant named AS. 

3.        The evidence contained in the statements of all those witnesses and in relation to each of those three complainants is of what are alleged to be complaints made by each of those complainants of the treatment they received at the hands of the defendant.

4.        Advocate Gilbert has helpfully referred me to passages contained in Phipson on Evidence (15^th Ed'n) and in particular passages appearing from paragraphs 11.64 onwards.  At page 280 of that work is to be found this passage:

"Complaints are receivable although made in the absence of the defendant and at such an interval as not to form part of the res gestae.  However, they must have been made at the first opportunity which reasonably afforded.  However, no precise rule can be laid down, the matter depending on the circumstances of each particular case.  It is for the judge at the trial to decide whether the complaint was made as speedily as could reasonably be expected".

And then there is a reference to a decision of the Court of Appeal in the case of R -v- Osborne [1905] 1KB 551 where the Court of Appeal said this:

"We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of the family whereas others may feel it quite impossible to tell their parents or members of their family".

And the text continues:

"The complaint must be voluntary and spontaneous, and not elicited by leading, inducing or intimidating questions.  Thus if the circumstances indicate that, but for the questioning, there would probably have been no voluntary complaint, the answers are inadmissible; while if the questions merely anticipate a statement which the complainant was about to make, the fact that the questioner spoke first is immaterial. "Did A assault you?  Did he say this or that to you?" would render the reply inadmissible; but "What is the matter?  Why are you crying?" would not, even where the crying complainant at first refused to speak, but was pressed to do so."

5.        Now bearing those passages in mind, which I accept are a correct exposition of the law, I turn to examine the testimony of each of these witnesses.  I deal with them, in a sense, in reverse order, first of all, with the evidence of Inspector Williamson.  I have no difficulty in reaching the conclusion that the evidence which he would give is inadmissible and must be excluded because he purports to record a complaint of an assault in September made to him about three months later on 17^th January the following year.  That could not possibly be said to be a recent complaint made at the first opportunity and for that reason alone I rule that that evidence is not admissible and Mr Gollop, on behalf of the Attorney General, has accepted that and has withdrawn the witness.

6.        The other three witnesses have caused me more difficulty and I have had to consider the matter with some care in relation to each of them.  In their cases, as I understand it, the objection is not so much to the fact that the complaint was not recent but to the fact that it was not spontaneous or voluntary and with that objection in mind, I look first at the evidence of CEW.

7.        She said that having picked up the complainant CM, she got in the car, she was very jittery, her eyes were very wide, she was talking extremely quickly, she was behaving quite strangely.  When they got home she poured a glass of water and then put the kettle on.  Bearing in mind that she had been to see the defendant, who claims to be a masseur, the next question seems to me natural and innocuous.  The witness asked her what the massage was.  She said that the masseur, Carlos, had worked her all over and then that he discussed a couple of areas that he could actually pinpoint to free up this area.  The next question in the context which I have described seems equally natural for the witness to ask, "Did he touch you or just talk about it".  At that point the complainant looked at her and her eyes welled up.  She said something like "It happened so quickly."  And then the witness continued, "I have known CM for three years and I have never seen her so upset and frantic.  She normally has high energy.  This day she was frantic, like someone who has had a stimulant". 

8.        Now, whether that evidence is adduced by the prosecution as evidence of recent complaint or whether it is adduced as evidence which might afford some corroboration, that is to say evidence of upset demeanour, my view is that it is admissible.  I do not regard the questions that were asked as falling into the category described in Phipson on Evidence and relied upon by Advocate Gilbert.  I do not regard them as being leading, inducing or intimidating questions.  As I have said they seem to me to be innocent and innocuous in the circumstances and therefore I do not uphold Advocate Gilbert's submission and I rule that that evidence be admitted.

9.        Next I turn to the evidence of JES and that relates, as I have said, to the demeanour and complaint of CAL.  What the witness purports to say is this: "That CAL came indoors, I said, "You're early" she sat down.  I said, "How did you get on?"  A perfectly normal and natural question.  She said "I'll tell you in a minute".  The witness made her a cup of tea and then the complainant sat with her head in her hands.  She was quiet.  Once again I asked, "Well, how did you get on?" an innocuous and certainly not an inducing or intimidating question, and she just burst into tears.  She said, "I am just stupid." And having seen the witness burst into tears and saying what she did, it seems to me perfectly natural and innocuous for JES to ask, "Well, what did he do to you".  Knowing that he must have done something to her and then the complainant made her complaint.  There can be no question of its not being a recent complaint, it was about as recent as could be and I do not regard it as being un-spontaneous or as having been elicited by improper questioning.  That evidence I rule is admissible.

10.      That takes me back to the third complainant, AS and to the evidence which it is sought to be given of Mr MMC.  He was what I might describe as the boyfriend of the complainant and he said that in September 2002, AS went for a massage to the defendant's premises.  "Later on that evening at teatime she told me that she had had her massage and that he rubbed her in some areas that were not proper".  Well there is nothing so far in that bald statement to indicate that there was any inducement at all or any questioning and in that sense it may be that the objection is premature and if need be Advocate Gilbert can renew it at the appropriate time.  But on the face of it I see nothing improper in what took place.  Neither is it alleged that it was not a recent complaint.  In my view, on the face of this statement it was recent, so unless anything further emerges when Mr MMC comes to give evidence, I rule (it may be, albeit, provisionally) that that evidence is admissible.

Authorities

Phipson on Evidence (15^th Ed'n): paras 11.64 - : pp. 280.

R -v- Osborne [1905] 1KB 551.