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Malayan Law Journal Articles/2016/Volume 6/Evidential Weight of Recent and Delayed Complaint in Sexual
Assault Trial Proceedings

[2016] 6 MLJ xiii

Malayan Law Journal Articles

2016

EVIDENTIAL WEIGHT OF RECENT AND DELAYED COMPLAINT IN

Dr Mohamad Ismail bin Hj Mohamad Yunus

Department of Legal Practice Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia

Email: [email protected]

A failure to report sexual assault immediately after it occurred has evolved into a presumption of fabrication
on the part of the complainant. This rule was based on 'the belief that a sexual assault complainant could
only be believed if she could demonstrate she had publicly denounced the perpetrator, sexual assault
complainants became a special category of witness whose credibility could be boosted by evidence of recent
complaint'. Complaint evidence is a type of prior consistent statement, which is given by a witness or the
complainant about when the complainant made their first report of sexual assault. The recent common law
complaint rule only allows this type of evidence to be relevant and admissible if the complaint was made at
the first reasonable opportunity after the alleged sexual assault. Further, it is only relevant and admissible for
credibility purposes, that is, to bolster the credit of the complainant. The evidential rules as applied to sexual
assault cases have been and remain a cause for some concern. This article will focus on the evidential value
relating to the relevancy and admissibility of recent and delayed complaint rule at the trial proceedings for
sexual assault.1

INTRODUCTION

The common law's approach to recent complaint evidence meant that evidence of delayed complaint was
also considered to be relevant to credibility but for a different purpose to undermine the complainant's
credibility. Evidence of delayed complaint is commonly used by defense counsel to argue that a complainant
has falsely accused the defendant of sexual assault. This may be especially likely in a family violence
context where, for example, there has been sexual abuse of a family member over a number of years. In R v
Osborne,2the recent complaint rule allows the complainant to give evidence that at the earliest reasonable
opportunity, she voluntarily and without prompting reported the rape to a third party. In Sparks v R,3 the court
held that this type of evidence is regarded as relevant to her credibility, since it indicates consistency
between her conduct and her statement at the trial. Moreover, where consent is in issue, it may be used to
show that her conduct was inconsistent with her consent.
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THE RELEVANCY AND ADMISSIBILITY OF EVIDENCE OF RECENT AND DELAYED COMPLAINT

Evidence of recent complaint would be relevant and admissible if the complaint was made at the first
reasonable opportunity or within a reasonable time of the alleged offence. What is reasonable would depend
upon the character of the individual complainant and the circumstances of the case.

In Papakosmas v R,4 the High Court held that recent complaint evidence is relevant to the facts in issue in a
sexual assault trial, for example, whether the complainant consented to have intercourse with the appellant.

In R v Valentine,5 the Court of Appeal demonstrated how far some judicial attitudes have progressed as
far as sexual victimisation is concerned. Roch LJ states:

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 their family whereas others may feel it quite impossible to tell
their parents or member of their family.6

The Court of Appeal confirmed the approach taken in R v Cummings,7 and held that such evidence was the
right principles that had been applied and the judge had directed himself to the question of whether the
complaint was region of 20 hours after the rape and the decision confirms that complaints made considerably
later than this may, in the right circumstance, also qualify.

In R v Peter M,8 in which a complaint in the form of a letter written in 1988 following abuse occurring
between 1983 and 1987 was admitted. The other side of the coin as far as the recent complaint rule is
concerned, is the sexual assault victims who do not complain promptly to a third party can expect to be
cross-examined about this by the defense. Indeed, Australian and Canadian decisions in the 1970s
emphasised the importance of doing so on the ground that the failure to complain at the first reasonable
opportunity is a circumstance which tells against the truthfulness of the complainant's evidence.9

These cases revealed a total lack of understanding about rape victim and of knowledge about the rape
trauma syndrome, for many perfectly genuine rape victim fail to report rape to a third party, either
immediately or at all. In his study of 70 rape victims who did not report to police, Paul Wilson found that
about 50 per cent never told anyone until they were interviewed for the study of had told someone weeks or
months later in conjunction with a discussion on other matters.10

Similarly, one-third of the women in the Women Against Rape study who claimed to have been raped or
sexually assaulted as adults had suffered one such attack without telling anyone about it.11 In a survey
published by the Australian Bureau of Statistic, it was found that the majority of women victims did not report
rape and those who did very often delayed before telling anyone at all.12 Victims decline to complain of rape
for a variety of reasons. They may be too traumatised, too embarrassed, too scared of encountering a
judgmental attitude, or consumed with quiet unjustified guilt feelings about what has occurred.13

The emphasis on the importance of recent complaint is therefore quite unjustifiable and it also presents yet
another barrier to prosecution and conviction in rape cases. In England, Adler's Old Bailey study confirmed
that defending counsel could be relied upon to point out forcefully to the court and delay in reporting. A
significantly lower conviction rate was revealed in such cases.14

It was held in R v Greenwood15 that the Crown is entitled to adduce evidence to explain absence of
complaint provided that it is admissible and not hearsay evidence.

THE REJECTION OF THE RECENT COMPLAINT RULE

There has been some criticism of the recent complaint rule as an exception to the rule against former
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consistent statements. In particular, it has been suggested (somewhat remarkably in view of the reasons for
it) that it gives an advantage to the complainant, who is not enjoyed by the defendant in a rape trial.16

Professor Tapper, who favours its abolition, suggests that the way forward is to reform what is still shown to
be wrong in the law of procedure as it applies to sexual offences directly, rather than seek to counter balance
one injustice by a different anomaly.17 It is not at all clear what procedural reforms are envisaged. But
whatever they are, this does not address the basic issue. Procedural reforms will not create an assumption
that a women who say she has been raped is telling the truth in the face of an abundance of prejudicial
myths concerning women who allege rape,18 the inevitable paucity if evidence to support her claim, and the
mostly unbridled efforts of defense counsel to discredit her. She will continue to be in a different position from
most other witness.

It is suggested that evidence of recent complaint should be permitted only if it falls within a further exception
to the prior consistent statement rule, namely, to rebut an allegation of recent fabrication.19 But this
exception has been narrowly construed and in Oyessiku20 the Court of Appeal warned that great care was
called for in applying it. Evidence of recent complaint would rarely become admissible under this head. If a
timely complaint made by an alleged victim could not be mentioned, many of those serving on juries would
wonder why, if she were telling the truth, she did not report the rape to someone right away? This would be a
further nail in her coffin. The abolition of the exception would serve only to place a further impediment in the
way of prosecutions in rape cases.21

The negative consequences of abolition has been amply illustrated by the Canadian and South Australian
experience. Section 27522 of the Canadian Criminal Code provides that the rules relating to evidence of
recent complaint in sexual assault cases are hereby abrogated. This provision would appear to have the
effect of disallowing the prosecution from adducing evidence of recent complaint as well as disallowing the
judge from directing the court as to any adverse inference to be drawn from a failure to produce such
evidence.23

It is commented that instead, it deprives the complainant of the opportunity to adduce evidence, which might
tend to support her credibility in a situation in which she continues to be viewed with disbelief and suspicion.

INTRODUCING THE PRINCIPLE OF RES GESTAE

It is no surprise that numerous attempts have been made to circumvent s 275 of the Canadian Criminal Code
by seeking to introduce recent complaint evidence through other avenues permitted by the law of
evidence.24 There has been a certain judicial willingness to accommodate these attempts but often this has
involved distorting other evidential rules.

For example, in R v Page,25 the complainant reported sexual assault to the police immediately after the
event. Counsel for the prosecution sought to have evidence of her complaint adduced in court by way of res
gestae doctrine. Statements made during the res gestae, that is, while actual events themselves were
occurring, are admissible by way of further exception to the rule against previous consistent statements.

It was argued somewhat optimistically in Page that any complaint made as the first reasonable opportunity
should be regarded as part of the res gestae and hence admissible. Whilst the court rejected this contention,
it was prepared to concede that a complaint which amounted to a spontaneous exclamation in response to
the events in question could be regarded as part of the res gestae.

It is noted that although it considered that the res gestae principle could not be invoked on the facts in
question, it was prepared nevertheless to allow the Crown to adduce evidence that a complaint was made to
the police shortly after the event and also to permit other witness to describe the complainant's emotional
condition and state of dress. The court justified this on the ground that evidence of the fact of a complaint by
the victim of any crime is always admissible on the issue of the victim's credibility as a witness.26

The court did not permit details of the complaint, thus reverting to Canadian law as it was in 19th Century
when evidence of recent complaint but not details thereof was admitted as evidence.27
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Where no complaint has been made, s 275 prevents the judge from drawing adverse inference. However, it
does not prevent defence counsel from cross-examining the complainant as to the failure to make an
immediate complaint and from drawing this failure to the attention of the court. Although Crown counsel will
be able to respond in these circumstances by adducing evidence of complaint, recent or otherwise, the
complaint may very well not have complained to anyone except eventually to the police. Expert evidence to
counter the myth that genuine complaints always report rape at the first opportunity and to explain why most
generally does not admitted.28

The Supreme Court of Canada has held that a trial judge should remind himself that there is no inviolable
rule on how people who are victims of trauma like a sexual assault will behave, that in assessing the
credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual
mosaic of a particular case, and that a delay in disclosure, standing alone, will never give rise to an adverse
inference against the credibility of complainant.29 Whilst such a direction, if given, would certainly be helpful,
it does not sufficiently challenge common prejudiced assumption. Empirical research has revealed that only
the defence has benefited from the Canadian reform. Whilst it has not hindered the defence from raising the
issue of delayed reporting in cross-examination, the prosecution has found it harder to support the
complainant's credibility.30

The Legislature has acted erroneously and this fact slowly emerging clearly. This too became obvious in
South Australia where the recent complaint exception was abolished in 1976. It was stored in 1984 after it
was recognised that abolition had created a series of problems, including depriving the complainant of an
opportunity to adduce evidence in support of her credibility, substantially disadvantaging the prosecution and
seriously prejudicing the complainant's credibility in the eyes of the court.31 In the Australian Capital
Territory, however, evidence of recent complaint by the victim and the terms of such complaint may no
longer be admitted in sexual assault proceedings.32

However, in New South Wales ('NSW'), the issue of recent complaint has been approached quite differently.
Prosecuting counsel may adduce evidence of recent complaint and this will be regarded as evidence of the
complainant's consistency. As a result of Crimes (Sexual Assault) Amendment Act 1981,33 where the victim
did not complaint immediately, and evidence is given or a question asked about the matter, it is now
obligatory for the judge, under s 405B of the Crimes Act 1900, to warn the court that this does not
necessarily betoken falsehood on the part of the complainant and that there may be good reasons why a
victim of sexual assault may hesitate or refrain from complaining about the assault.34

This will not prevent the judge from stating, in any particular case, that the facts are indicative of fabrication.
Other Australian states have similar provision.35

The Victorian legislation provides additionally that a judge must not warn or suggest in any way to the court
that the law regards complainants in sexual cases as an unreliable class of witness.36

Dr Woods explained the reasons behind the NSW provision as follows:

The reasons for late complaint or the absence of recent complaint may be subtle and difficult to understand or express.
Section 405B is designed as a compulsory warning to the court (to the judge and counsel) that even though a rape
victim may have difficulty in articulating in the witness box of painful self-reflection he or she felt after the offence
occurred, such difficulty should not be necessarily taken as indication of fabrication. The section thus serves to alert the
court to a point of considerable importance. The pressure to dismiss rape allegation where the hue and cry has not
been immediately raised has certainly been a factor in deterring legitimate reports and prosecution of sexual assault.
The section will be a signpost; it is hoped, not only for courts but also for investigating police and prosecutor.37

This approach may seem to have much commended it. It appears to represent a positive and imaginative
step in the direction of dismantling the stereotype of the genuine rape victim. However, the fortunate history
of the operation of this provision is not encouraging. In R v Davies,38 the New South Wales Court or Criminal
Appeal chose severely to undermine the effect of the new provisions. It held that, in addition to giving the
directions required by s 405B, the trial judge should generally continue to direct the court in accordance with
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the decision taken by High Court of Australia in 1973 in Kilby v The Queen39 that the absence of a complaint
or the delay in making one can be taken into account in evaluating the evidence of the complainant and in
determining whether to believe her.

In Crofts,40 the High Court of Australia dealt with an appeal concerning the Victorian mandatory directions. It
echoed the decision in Davies and held that they too did not prevent a judge from offering a Kilby direction,
commenting that the section did not convert complainants in sexual misconduct cases into an especially
trustworthy class of witness.41

INTRODUCING EVIDENCE OF EXPERT WITNESS

Simon Bronitt has suggested a different approach. He argues that the best way assisting and educating both
the counsels and the trial judge about the characteristic reactions of victim to traumatic events is through
expert evidence of rape trauma syndrome ('RTS'). In this way the myths and misconception surrounding
delayed complaints would be effectively challenged.42 Alternatively, he suggests that the many victimisation
studies, which illustrate why victims are reluctant to report sexual abuse could be brought to the attention of
the court through expert evidence.43

There has been a marked reluctance to allow experts to give psychological or psychiatric evidence. As
Lawton LJ stated in R v Turner, jurors do not need psychiatrists to tell them how ordinary who are not
suffering from any mental illness are likely to react to the stresses and strain of life.44 Although the Turner
principle is now applied a little more flexibly, the basic approach to expert evidence is that it is permitted only
where it is deemed to be strictly necessary: An expert's opinion is admissible to furnish the court with
scientific information which is likely to be outside the experience and knowledge of a judge and court.45 It
may be argued that judges and counsels are not generally familiar with scientific findings about reactions to
trauma, which are very often counter-intuitive.

There is a fear, inter alia, that those who do not suffer the symptoms RTS will be disbelieved. But this
argument seems less compelling where RTS evidence is used only to demonstrate that victims are
frequently too traumatised to report immediately. There is something to be said for prosecutors attempting to
introduce such evidence for this limited purpose.

THE POSITION UNDER THE MALAYSIAN EVIDENCE ACT 1950

Evidence of conduct

The Evidence Act 1950 allows for evidence of previous or subsequent conduct of the accused person,
the victim or a third party to be tendered as evidence. The requirement for evidence of conduct to be
accepted by the court is that the conduct must directly affect, influence or be affected by the facts in issue or
relevant facts. Thus, the nexus between the conduct and the facts in issue must be established so that the
action is not an isolated event, disjointed from the facts in issue. This has been so stated in Sarkar on
Evidence as follows:

The conduct of party to a proceeding or his agent in reference to such proceeding at the time when the facts occurred
out of which the proceeding arises, or in reference to any fact in issue or relevant fact, or the conduct of the
complainant, is relevant; but the condition precedent to its admissibility as 'conduct' is that it must directly influence or
be influenced by a fact in issue or relevant fact and such conduct does not include action resulting from other causes or
circumstances. It must be the essential complement of the act done or refused to be done. Conduct includes
antecedent or subsequent conduct involving both actions and statements.46

Meaning of previous conduct

Conduct refers to a commission or omission of an act. Explanations to s 8(2) states that statements are not
part of conduct except when such statements are used to explain some actions.47 In fact, a statement can be
part of conduct if it caused an action to come to light.48

Previous conduct refers to the conduct of a person, for example, an accused person before the commission
of the facts in issue. Sometimes previous conduct of an accused person may overlap with preparation to
commit a crime. For example, a victim filing a complaint against the accused person for stalking her reflects
the conduct of the victim.

Explanation (1) to s 8(2) generally states that conduct refers to action. A statement will not be a part of
conduct except when such statement accompanies or explain acts. If no action is involved, a statement can
only be regarded as conduct if such statement is a complaint. The following illustrations in the section allow
for a specific statement, ie complaint to be regarded as conduct.

Illustration (j) - The question is whether A was ravished.

The facts that shortly after the alleged rape she made a complaint relating to the crime, the circumstances under
which and the terms in which the complaint was made are relevant. The fact that without making a complaint she said
that she had been ravished is not relevant as conduct under this section, though it may be relevant -

(i) as a dying declaration under s 32(1)(a); or

This illustration distinguishes a complaint from a mere statement. Thus if a victim make a police report, such
police report is complaint. Tendering the police report as evidence in the court is akin to tendering the
evidence of the conduct of the victim under s 8(2) illustration (j). This proposition has been clearly explained
in the case of Aziz bin Muhamad Din v Public Prosecutor.49

In this case, the accused was charged and convicted under s 376 of the Penal Code for rape of an underage
girl. Since this case concerned a child in a sexual offences case, the law in R v Baskerville50 and R v
Whitehead51 requires that evidence in corroboration must be an independent testimony and that the story
told by the victim to a third party, for example her mother, of an unlawful sexual intercourse was not capable
of amounting to corroboration because the statement emanated from the girl herself. Due to this, the issue
was whether her police report amounted to sufficient independent corroboration.

It was held that for the victim's statement to be regarded as conduct of the victim under s 8(2) of the
Evidence Act 1950, such statement must be accepted as a complaint pursuant to illustrations (j). Once it is
regarded as a complaint, it becomes a substantive piece of evidence and not a mere statement under s 157.
If evidence is regarded as a mere statement under s 157 of the Evidence Act 1950, it only confirms the
consistency in the making of such statement where the source of such evidence is only the victim herself.
For instance, in the case Balwant Singh v Public Prosecutor,52 Karthiyayani & Anor v Lee Leong Sin,53
Public Prosecutor v Paneerselvan & Ors54 and the Court of Appeal case of Mohd Yusuf bin Rahmat v Public
Prosecutor55 had ruled that a witness cannot corroborate her own testimony and that independent evidence
is required to constitute corroboration. Such evidence is excluded as corroboration on the basis that its
probative value outweighs its prejudicial effect.56

The case of Aziz bin Muhamad Din v Public Prosecutor57 explains that a complaint is a conduct because it is
an expression of feeling, made with a view to redress or punish and is made to someone in authority. The
case of Public Prosecutor v Mohammad Terang bin Amit58 reflects that someone in authority can be a
teacher in a school and in Public Prosecutor v Teo Eng Chan & Ors,59 the doctor by whom the victim was
treated was considered as someone in authority.

For a statement to be a complaint, it must be made voluntarily without any element of inducement or
intimidation. That is why in Aziz's case, the police report made by the girl was not regarded as a complaint
and thus not a conduct under s 8(2) as it was made upon the threat imposed by her father, hence making it
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involuntary. A mere statement on the other hand is mere evidence of knowledge.

In the case of Boota Singh v Public Prosecutor,60 a police report was made by the deceased against the
accused several months before the murder. It was held that such report was not admissible under s 32 of the
Evidence Ordinance as it was hearsay for the purpose of showing the truth of the allegation of deceased
against the accused. The report however was admissible under s 8 as it indicated that the deceased was on
bad terms with the accused.

The conduct of the deceased in making a report against the accused was made relevant by s 8 of the
Evidence Ordinance. Even though a statement is not 'conduct' within the meaning of the section but if the
statement accompanied and explained the deceased's act in making the report, it is expressly admissible in
terms of explanation (i) of s 8. Thus, the accused's dealing with deceased drove deceased to lodge and sign
a report at the police station against him. The statement then recorded explains her action, and becomes
relevant under s 8.61

Evidence of former consistent statement

Section 157 of the Evidence Act 1950 provides that:

In order to corroborate the testimony of a witness, any former statements made by him whether written or verbal, on
oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any
authority legally competent to investigate the fact, may be proven.

There is a history of discord over the question of whether this section merely allows proof of a witness'
previous statement to show that her testimony is consistent, or whether the previous statement may be
considered as corroboration. If interpreted literally, the section does not satisfy the requirement of
independence as suggested in R v Baskerville62 as it is the witness own statement, which is intended to be
corroborative.

Indeed, Baskerville emphasises on the independency of the corroborating evidence in the sense that it must
not come from the witness herself. Nevertheless, s 157 of the Evidence Act 1950 seems to regard a former
statement of the witness as one of corroborative evidence.

The objective of s 157 of the Evidence Act 1950 was to admit statements made at a time when the mind of
the witness was so connected with the events as to make it probable that his description of them would be
accurate.

The position under the common law is clearly different from the Malaysia position in that previous
statement of the witness cannot corroborate her testimony in court. This is reflected in R v Whitehead63 In
this case, the accused was charged with having unlawful sexual intercourse with a girl under the age of 16.
The girl mentioned the incident for the first time weeks later when she was pregnant. Lord Hewart CJ
rejected the argument that her conversation could amount to corroboration saying:

In order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated. A
girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story some twenty-five times to get
twenty-five corroborations of it.64

Therefore, in the earlier cases of R v Velayuthan,65 R v Koh Soon Poh66 and Lim Baba v Public
Prosecutor,67 it was held that any statement made immediately after the event by a victim to a third party can
be regarded as corroboration under the above section though it may not be so in England. Nevertheless, this
approach to s 157 changed following the decision of Mohamed Ali v Public Prosecutor,68 where Ong, J
stated that:
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It will not be out of place here to say a few words about s 157 of the Evidence Ordinance. Admissibility of a previous
statement under that section must not be confused with the weight to be given to it. Corroboration, strictly speaking,
means independent corroboration as explained in R v Baskerville. In my opinion true corroboration by independent
evidence from an extraneous source should be distinguished from 'corroboration' as it appears in s 157, which rests on
the principle that consistency between a previous statement by a witness and his present evidence may afford some
ground for believing him. The value of such a statement as corroboration may be infinitesimal, as in the majority of
cases it is. On the other hand, by reason of the abundance of detail it may contain as to the facts and circumstances
surrounding any relevant transaction, it may be capable of being cross-checked for truthfulness against other relevant
evidence, in which case, or course, it may be effective corroboration, but only because it has been shown to be true.69

Subsequent to this, Ah Mee v Public Prosecutor70 emphasised the need to have the element of
independence for the evidence to be corroborative. Nonetheless, the court reflects caution to totally reject s
157 as corroborative evidence. In Karthiyayani & Anor v Lee Leong Sin & Anor71 the court held that the
previous consistent statement of the first respondent at the inquest was consistent with the testimony he
gave in court as corroborative evidence on the basis of its consistency but 'it constitutes a very weak type of
corroborative evidence as it tends to defeat the object of the rule that a person cannot corroborate himself'.
Raja Azlan Shah FJ stated that:

The section adopts a contrary rule of English jurisprudence by enacting that a former statement of a witness is
admissible to corroborate him, if the former statement is consistent with the evidence given by him in court. The rule is
based on the assumption that consistency of utterance is a ground for belief in the witness's truthfulness, just as
inconsistency is a ground for disbelieving him. As for myself, although the previous statement made under s 157 is
admissible as corroboration, it constitutes a very weak type of corroborative evidence, as it tends to defeat the object of
the rule that a person cannot corroborate himself. In my opinion the nature and extent of corroboration necessary in
such a case must depend on and vary according to the particular circumstances of each case. What is required is
some additional evidence rendering it probable that the story of the witness is true and that it is reasonably safe to act
upon it.72

In the case of Public Prosecutor v Teo Eng Chan & Ors,73 the accused were charged with gang rape of the
complainant in a lorry. They claimed that she had consented to sexual intercourse. Although the complainant
was taken home the same night, she did not complain to her mother about the incident. The next day, she
reported the rape to her doctor and then to the police. The court held that her testimony was adequately
corroborated by both the reports.

The issue of whether the former statements of a witness mav be used to corroborate the maker under s 157
also appears to contradict s 73A(7) of the Evidence Act 1950. Section 73A(7) provides that:

For the purpose of any rule of law or practice requiring evidence to be corroborated, or regulating the manner
in which uncorroborated evidence is to be treated, a statement rendered admissible by this Act shall not be
treated as corroboration of evidence given by the maker of the statement.

The inconsistency of the application of s 157 and s 73A(7) of the Evidence Act 1950 was discussed in
the case of Aziz bin Muhammad Din v Public Prosecutor,74 where the court held that s 73A(7) overrides the
application of s 157 on three reasons:

(a) s 73A(7) is a later provision incorporated into the Evidence Act 1950;
(b) s 157 is general in nature whilst s 73A(7) is specific in nature; and
(c) the words 'by this Act' in s 73A(7) literally means that the subsection is not confined to only
admissibility of documentary evidence in civil proceedings.

The case of Aziz bin Muhammad Din v Public Prosecutor on this point, was subsequently overruled by the
Federal Court's decision in Lim Guan Eng v Public Prosecutor75 where the court held that s 73A should be
read as a whole. The subsections should not be read in isolation of one another and the court was satisfied
that the section refers to the question of admissibility of a statement made by a person in civil proceedings
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only. It is therefore settled law that in Malaysia, former statements of a witness may be admissible as
corroborative evidence of that witness.

As to the meaning of the phrase 'at or about the same time' appearing in s 157 of the Evidence Act 1950, the
court in Public Prosecutor v Peneerselvan & Ors76 held that the statement must be made at once or at least
shortly after when a reasonable opportunity for making it presents itself.77

The court also held that once it was accepted that the statement is relevant and admissible, the court must
decide if the probative value of the statement is outweighed by its prejudicial effect.

Demeanor of the victim

The state of demeanor of a victim of an offence may, in certain circumstances, amount to corroboration of his
testimony concerning the offence. Although the distress emanates from the witness and is not strictly
independent, it is given corroborative status when the court is satisfied that it could not have been fabricated
or caused by an incident other than the offence in question.

The court in Liew Kim Yong v Public Prosecutor78 held that it is well-established that there must be a
guarded approach to using ex post facto crying or distress as evidence of corroboration. In holding that the
court should put little weight to the evidence of the distress of victim, the court quoted R v Wilson79 and
reasoned that distress might result from other causes dissociated from the alleged offence; or the
complainant might be putting on an act or simulating distress.

In R v Redpath,80 the accused was charged with indecent assault on a young girl. The girl's mother testified
that the girl returned home very distressed and immediately complained. The court held that while the girl's
distressed condition may in law be capable of amounting to corroboration, quite clearly the jury should be
told that they should attach little, if any, weight to the evidence because it is all part and parcel of the
complaint.

Evidence of fresh in the memory

Evidence of how and when any complaint was made by the complainant about the alleged sexual assault by
the accused, is admissible in evidence, regardless of when the preliminary complaint was made.81

In Papakosmas v The Queen,82 three of the complainants' work colleagues were able to give evidence not
only of the complainant's crying and distressed state after emerging from the ladies' toilets but also of her
statements to them that 'Papakosmas raped me'. This particular statement was held to be admissible
because the complainant had informed her work colleagues about being sexually assaulted by the accused
almost immediately after the events in question so that the 'fresh in the memory' requirement was satisfied.

However, in Graham v The Queen,83 the High Court was required to consider the scope of the 'fresh in the
memory' test. Instead of evidence of recent complaint, a witness had given evidence about the complainant's
disclosures made six years after the alleged sexual assault. The High Court held that the witness' evidence
was not admissible because the complainant had not told her friend that she was sexually abused by her
father when the events were fresh in her memory. The High Court interpreted the word, 'fresh' to mean
'recent' or 'immediate' so that the lapse of time 'will very likely be measured in hours or days, not, as was the
case here, in years'.

It is submitted that in determining whether the occurrence of the asserted fact was fresh in the memory
of a person, the court may take into account all matters that it considers are relevant to the question,
including:

(a) the nature of the event concerned;

ISLAMIC LAW PERSPECTIVE

The evidential weight of the recent or delayed complainant under the Islamic law is being considered under
the scope of circumstantial evidence, which is termed as Al Qarinah in Arabic.

Circumstantial evidence or Al Qarinah is a type of method of proof from which the judge may infer the
existence of a fact in issue but which does not prove the existence of the fact directly such as previous and
subsequent statement of the complainant, opportunity, finger-print, possession of stolen property, weapons
used, motive, DNA profile etc.

Al-Qarinah literally means connection, conjunction, relation, union, affiliation, association, linkage or
indication. In terms of law it is the logical inference to draw from, done, or by virtue of which the matter
becomes definitive, a sign which makes the matter certain. It is also known as presumption, which means a
conclusion or inference as to the truth of some fact in question, drawn from other facts proved or admitted to
be true. Circumstantial evidence may be weak or strong. Sometime it is considered conclusive, while on
other occasions it might be only probative. When it is strong it is accepted as evidence for the relevant fact.84

Concerning the evidential value of recent and delayed complaint of a sexual assault's victim, a presumption
as to the truth of some facts in question, is allowed to be admitted as relevant and admissible. A presumption
is a rule of law by virtue of which, where a party proves one fact (the primary fact) a second fact (the
presumed fact) will also be taken to have proved, in the absence of evidence to the contrary. A party who
adduces evidence sufficient to overcome the effect of the presumption is said to rebut the presumption. The
theoretical basis for recognising presumptions is that the presumed fact would, in the usual course of events,
flow naturally from the existence of the primary fact, so that the rational connection between the two is so
strong that it is unnecessary to require evidence of the presumed fact in the absence of unusual
circumstances.

No evidence is then required to establish the presumed fact. Where a presumption is of the 'persuasive' kind,
the opponent may rebut the presumption only by disproving the presumed fact to the appropriate standard of
proof; if it is of the 'evidential' kind, the opponent may rebut the presumption by introducing evidence against
the presumed fact sufficient to amount to a rule as to the burden and standard of proof, as any other fact in
the case.85

The Islamic law recognises circumstantial evidence for the proof relating to sexual assault. The Holy
Quran states,

At last Joseph and she raced towards the door one behind the other and she tore his shirt (pulling it) from behind and
then met her husband at the door. Seeing him, she cried out, 'What punishment does the one deserve who shows evil
intentions towards your wife? What else than that he should be put in prison or tortured with painful torment'. At this a
witness of her own folk testified (saying) 'if his shirt is torn from front, then she speaks truth and he is of the liars. And if
his shirt is torn from behind then she tells a lie and he is of the truthful.' When the husband saw that the shirt was torn
from the back, he said, 'This is one of your cunning devices, your devices are indeed very cunning'. 86

It has been related on the authority of Wail Ibn Hujar that a woman was travelling in the darkness to the
mosque for her morning prayer. A man sexually assaulted her. Immediately she complained the crime to
another person who came to her rescue and she relate to him the whole story. The man went to search for
the perpetrator. Then some other persons also came to the crime scene and she told them the whole
incident to them and they also went to search for the offender.

It is submitted that the above incident is an authority to show the woman immediate complaint to the first
party concerning the sexual assault is a relevant fact that she was ravished and for the man to trust her
words of truth and proceed to search for the offender and the subsequent complaint to the second party is to
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strengthen her statement that the sexual assault happened was without her consent or against her will, thus
she would be free from the charge of fornication due to the fact that she was actually the victim of sexual
assault.

According to article 1741 of the Majelle Al-Ahkam Al-Adliyyah, a codified law of the Ottoman Empire of
Turkey, has provided provision on presumption states:

A completed presumptive proof is an inference, which attains the degree of positive knowledge.

For instance, pregnancy of an unmarried woman is a sufficient proof against her for committing fornication provided she
did complain that she was raped.87

Therefore, under the Islamic law, in sexual assault cases the evidential value of a recent or delayed
complaint rule is a material fact in order to exempt a woman from a criminal responsibility and liability.
Recent or delayed complaint if being made by the complainant, will be presumed that the sexual connection
had happened not consensually thus constitutes rape.

CONCLUSION AND RECOMMENDATIONS

It is concluded that the recent and delayed complaint rule is to be permitted its application more liberal.
There is growing support for the view that the rule against prior consistent statements is in any case too
broad. Very often such statements are an important part of the story and have much to explain about the
alleged victim's experience. The evidence of prompt complaint should be relevant and admissible in a broad
range of offence whenever the witness claims to be a person against whom an offence to which the
proceedings relate has been committed and subject to certain conditions, including that the complaint was
made as soon as could reasonably be expected after the alleged conduct.

Furthermore, such statements should be relevant and admissible not merely to support the victim's
credibility, but as evidence of the truth of the assertions for anyone to make an evaluation which they
contain. A report of a sexual assault made by a victim while it was still fresh in her memory may be relevant
and admissible as evidence of the facts stated, however, subject to the discretion of the court.

The fresh memory test is apt to cover complaints made some time after the event itself, even years
afterwards, whereas the recent complaint rule would be applicable only to those complaints that were made
as soon as could be reasonably expected after the alleged sexual assault. Under both systems ie modern
secular law and Islamic law where the temporal line is drawn will depend heavily upon the court's discretion
(ta'azir) in each case.

1 For details discussion on this subject, see Jennifer Temkin (1987). Rape and The Legal Process (London, Sweet & Maxwell.
Rook and Ward, 2004). Sexual Offences: Law and Practice (3rd Ed,(UK) Thomson, Sweet & Maxwell).

2 [1905] 1 KB 551.

3 [1964] AC 964.

4 [1999] 196 CLR 297, at p 309.

5 [1996] 2 Cr App R 213.

6 Ibid at p 224.

7 [1948] 1 All ER 551.

8 Court of Appeal, (Criminal Division No 1999/7320/Z2, 2000 WL 1213017), in which a complaint in the form of a letter written in
1988 following abuse occurring between 1983 and 1987 was admitted.

9 R v Boyce (1975) 23 CCC (2d) 16 at 33-4. See also Kilby v The Queen [1973] 129 CLR 460 at p 465; Kistendey (1976) 29
CCC (2d) 383.

10 Wilson. 1978. The Other Side of Rape, at pp 62-63.

11 Hall. 1985. Ask Any Woman: A London Inquiry into Rape and Sexual Assault, 142. In the year preceding the 2000 BCS, the
BCS estimated that 61,000 women were victims of a rape in England and Wales: see Home Office Research Study 237, p vi.
But in 1999/2000, only 8,409 offences of rape against females and males were recorded by the police.

12 Crime and Safety Survey, NSW, Cat No, 4509.1 April 1994.

13 Wilson. 1978. The Other Side of Rape, at pp 58-65.

14 Adler. 1987. Rape on Trial, at p 119.

15 [1993] Crime LR 770.

16 Cross and Tapper. 1995. Evidence. London. Butterworths. 263.

17 Ibid at p 279.

18 For instance, women frequently fabricated rape allegations; that rape is consensual sex, which the woman afterwards
regrets; that rape allegations are easy to make and hard to disproved; that genuine rape victims report to the police
immediately.

19 Ibid, footnote 16, at p 279.

20 Ibid.

21 Jennifer Temkin. (1987). Rape and The Legal Process. London. Sweet & Maxwell. This exception applies only where, the
credit of the witness is impugned on the ground that his account is a late invention or has been lately devised or reconstructed:
see Oyesiku (1971) 56 Cr App R 240, 245. See also Tyndale [1979] Crim LR 320.

22 Formerly s 246.5.

23 Temkin. Towards a Modern Law of Rape (1982) 45 MLR 399

24 Ibid.

25 [1984] 40 CR (3d) 85.

26 Ibid.

27 For support for this approach, see Watt. 1984. The New Offences Against Person, 185-6.

28 R v DD [2000] 2 SCR 275.

29 Ibid.

30 Ibid, at p 277.

31 Model Criminal Code Officers Committee (1996), 187.

32 Evidence (Amendment) Ordinance (No 2) 1985 (ACT) inserting s 76C(1) to the Evidence Act 1971. However, a special
warning must be given to the court in the case of late complaint: see below under the heading Model Direction.

33 Schedule 1(14).

34 Crimes Act 1900, s 405B.

35 ACT Evidence Act, s 76C; Tasmanian Criminal Code, s 371A: Western Australia Evidence Act, s 36BD; Northern Territory
Sexual Offences (Evidence and Procedure) Act, s 4.
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36 Crimes Act 1958, s 61(1).

37 Woods. 1981. A Commentary on the Crimes (Sexual Assault) Amendment Act, 1981. Dept of AG (UK), 26. In New Zealand,
a far less satisfactory provision has been enacted. It is up to the judge whether he explains to the court that there may be good
reasons for failure to complain: see Evidence Amendment Act (No 2) 1985, s 3.

38 (1985) 3 NSWLR 276.

39 (1973) 129 CLR 460.

40 (1996) 88 Crim LR 232.

41 Ibid p 250.

42 S Bronitt, The Rules of Resent Complaint, in Easteal (1998), 50-3.

43 Ibid.

44 [1975] QB 834 at p 841. A sentiment recently repeated in R v Gilfoyle [2001] 2 Cr App Rep 57. See R v DD (2000) 2 SCR
275 (Canada).

45 R v Turner [1975] QB 834 at p 841.

46 Sarkar on Evidence Vol 1 (14th Ed) at p 194.

47 Explantion 1 and illustration (j).

48 Explanation 2 and illustrations (f), (g) and (h).

49 [1996] 5 MLJ 473.

50 [1916] 2 KB 658.

51 [1929] 1 KB 99; (1929) 91 Cr AR 23.

52 [1960] 1 MLJ 264.

53 [1975] 1 MLJ 119.

54 [1991] 1 MLJ 106.

55 [2009] 2 CLJ 673.

56 Habibah Omar and others, Law of Evidence in Malaysia. (Kuala Lumpur 2014, Sweet & Maxwell) at p 73.

57 [1996] 5 MLJ 473.

58 [1999] 1 MLJ 154.

59 [1988] 1 MLJ 156.

60 [1933] 2 MLJ 195b.

61 Habibah, footnote 56, at p 302

62 [1916] 2 KB 658.

63 [1929] 1 KB 99.

64 Ibid, at p 100.

65 [1935] MLJ 277.

66 [1935] MLJ 120.

67 [1962] MLJ 201.

68 [1962] MLJ 230.

69 Ibid, at p 231.

70 [1967] 1 MLJ 220.

71 [1975] 1 MLJ 119.

72 Ibid, at p 120.

73 [1988] 1 MLJ 156.

74 [1996] 5 MLJ 473.

75 [2000] 2 MLJ 577; [2000] 2 CLJ 541.

76 [1991] 1 MLJ 106.

77 The same principle is also applied in the case of Public Prosecutor v Mohamad Terang Amit [1999] 1 MLJ 154 and Kesaran
Senderan v Public Prosecutor [1998] MLJU 375; [1999] 1 CLJ 343.

78 [1989] 3 MLJ 323.

79 (1979) 58 Cr App Rep 304.

80 (1962) 46 Cr App Rep 319.

81 Section 4A (2) of the Criminal Law (Sexual Offences) Act 1978 (QLD).

82 (1999) 196 CLR 297, at pp 300-301.

83 (1998) 195 CLR 606.

84 Anwarullah. 1999. Principles of Evidence in Islam. Kuala Lumpur. AS Noordeen at p 107.

85 Ibid, at p 108

86 Holly Quran, Chapter 12, verses 25-28

87 Ibn Qudama, al Mughni, Vol IX, 173