In a criminal trial in relation to a criminal offence of a sexual nature and domestic violence offences, evidence of how, when and what the complainant tells another person about the offence is admissible in evidence.
In a criminal trial in relation to a criminal offence of a sexual nature and (newly) “domestic violence offences”, evidence of how, when and what the complainant tells another person about the offence is admissible in evidence. In other words: If the complainant tells a friend about what happened (the offence):
- (a) the friend can give evidence about what they were told.
- (b) The complainant can give evidence about what they told the friend (about the offence).
Sometimes, the “preliminary complaint” evidence is a text message, sometimes it’s a conversation at a doctor’s appointment, or a verbal conversation with a friend or taxi driver.
So what’s the point of the evidence?
- The evidence does not directly prove something occurred
- That evidence may only be used as it relates to the complainant’s credibility. Consistency between the two accounts (complainant and the friend) is something the jury may take into account as possibly enhancing the likelihood that her/his testimony is true. Likewise, any inconsistencies between the two accounts may cause the jury to have doubts about the complainant’s credibility or reliability.
- In some criminal trials there may be five preliminary complaint witnesses (e.g. two friends, a nurse, mum and sister). In other trials there are no preliminary complaint witnesses. The Judge tells the jury: Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.
- Preliminary complaint evidence must “about the alleged commission of the offence” and not in relation to acts that are not the subject of the specific charges before the Court.
- Section 4A(3) of the Act provides the Court with the power to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.
- Preliminary complaint evidence can be both damaging and helpful to both the prosecution and the defence.
- R v NM [2013] 1 Qd R 374; R v PAS [2014] QCA 289; R v KAW [2020] QCA 57 at [33]-[39].
- Section 4A Criminal Law (Sexual Offences) Act 1978.
