COMPLAINTS.

69

COMPLAINTS.
R. V. LILLYMAN
(1896).
L. R. [1896] 2 Q. B. 167 ; 65 L. J. M. C. 195 ;

74 L. T. 730 ; 44 W. R. 654 ; 60 J. P. 536.

Statements made after the transaction are generally

irrelevant and inadmissible ; but, in cases of rape
and similar offences, the fact that a complaint was
made by the prosecutrix shortly after the alleged
occurrence, and the particulars of such complaint,
may, so far as they relate to the charge, be given
in evidence by the prosecution, not as evidence
of the facts complained of, but as evidence of the
consistency of the conduct of the prosecutrix with
the story told by her in the witness-box, or as
negativing her consent.

On a charge of attempted rape and indecent assault the mistress

of the prosecutrix, being a person to whom she would naturally
complain, was allowed to state all that the prosecutrix told her,
in the absence of the prisoner, very shortly after the commission
of the act.

Hawkins, J. " It is necessary in the first place to have a clear

understanding as to the principles upon which evidence of such a
complaint, not on oath, nor made in the presence of the prisoner, nor
forming part of the res gestm, can be admitted. It clearly is not
admissible as evidence of the facts complained of; those facts must
therefore be established, if at all, upon oath by the prosecutrix or
other credible witness, and, strictly speaking, evidence of
them ought
to be given before evidence of the complaint is admitted. The
complaint can only be used as evidence of the consistency of
the conduct of the prosecutrix with the story told by her in the
witness-box, and as being inconsistent with her consent to that of
which she complains."

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70 jRELEVANCY.

" In every one of the old text-books, proof of complaint is

treated as a most material element in the establishment of a charge
of rape or other kindred charge. ... It is too late, therefore, now
to make serious objection to the admissibility of evidence of the
fact that the complaint was made, provided it was made as speedily
after the acts complained of as could reasonably be expected."
"That the general usage has been substantially to limit the
evidence of the complaint to prove that the woman made a com-
plaint of something done to her, and that she inentioned in connection
with it the name of a particular person, cannot be denied ; but it is

equally true that Judges of great experience have dissented from this
limitation, and of those who have adopted the usage, none have ever
carefully discussed or satisfactorily expressed the grounds upon which
their views have been based. . . . When and for what reason the
proof of the complaint was first limited to answers to such questions
as whether the prosecutrix made a complaint, whether she mentioned
a name, or whose name she mentioned, I have not been able to
discover."
" After very careful consideration we have arrived at the conclusion
that we are bound by no authority to support the existing usage
of limiting evidence of the complaint to the bare fact that a com-
plaint was made, and reason and good sense are against our doing
so. The evidence is admissible only upon the ground that it was a
complaint of that which is charged against the prisoner ; it can be
legitimately used only for the purpose of enabling the jury to
judge for themselves whether the conduct of the woman was
consistent with her testimony on oath given in the witness-box. . . .

It is to be left to the witness to whom the statement is made to

determine and report to the jury whether what the woman said
amounted to a real complaint ? "
" Nor can it be that the jury are bound to accept the witness's
interpretation of her words as binding upon them without having
the whole statement before them, and without having the power
to require it to be disclosed to them, even though they may feel it
essential to enable them to form a rehable opinion. ... In reality,
affirmative answers to such stereotyped questions as whether the
prosecutrix made a complaint (which is a very leading question) of

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 COMPLAINTS. 71

something done to herself, and whether she mentioned a name,

amount to nothing to which any weight ought to be attached ;
they tend rather to embarrass than to assist a thoughtful jury, for
they are consistent either with there having been a complaint or no
complaint of the prisoner's conduct. To liinit the evidence of the
complaint to such questions and answers is to ask the jury to draw
important inferences from imperfect materials, perfect materials
being at hand, and in the cognisance of the witness in the box."
" It has been sometimes urged that to allow the particulars of the
complaint would be calculated to prejudice the interests of the
accused, and that the jury would be apt to treat the complaint as
evidence of the facts complained of. Of course, if it were so left to
the jury, they would naturally so treat it. But it never could be
legally so left, and we think it is the duty of the Judge to impress
upon the jury in every case that they are not entitled to make use
of the complaint as any evidence whatever of those facts, or for
any other purpose than that we have stated. With such direction
we think the interests of an innocent accused would be more pro-
tected than they are under the present usage. For when the whole
statement is laid before the jury they are less likely to draw
wrong and adverse and may sometimes come to the
inferences,
conclusion that what the woman said amounted to no real complaint
of any offence committed by the accused."

JToie.—
^It is not easy to say on what ground such evidence of a complaint

isadmissible. It is stated in the above judgment that it is not part of

the res gestae, or the transaction. But it is very near to it. An exclama-
tion made at the time of the act would be part of the transaction, and
would be admissible for all purposes, not merely as corroboration. A
statement to be admissible as a complaint must be made very shortly
after the transaction (see next case).
Statements made after the transaction are admissible also if they
amount to admissions (bbb post, p. 133).

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72 RELEVANCY.

R. V. OSBORNE
(1905).

L. R. [1905] 1 K. B. 551 74 L. J. K. B. 311

; ; 92
L. T. 393 ; 53 W. R. 494 69 J. P. 189.
;

Evidence of complaints made in the absence of the

accused, after the matter complained of, is only
admissible in cases of rape and similar offences
against females.
Such evidence is admissible, whether consent is or is
not a material element in the charge, in order to shew
the consistency of her conduct with her evidence, and
to corroborate the latter.
But the complaint must be shown to have been made
at the first opportunity which reasonably offered
itself after the commission of the offence.
The fact that the complaint has been made in answer
to a question does not of itself render it inadmissible
but it must not have been elicited by questions of a
leading and inducing or intimidating character.
The Judge ought to inform the jury that the statement is
not evidence of the facts complained of, and must
not be regarded by them as other than corroboration
of the prosecutrix's evidence, or of the absence of
consent.
On a charge of indecent assault on a girl aged twelve, evidence
was given by another girl aged eleven, to the effect that she had left
the prosecutrix with the prisoner shortly before the alleged offence,
arranging to return soon. On her way back she met the piosecutrix
running home, and said to her, " Why are you going home ? Why
did you not wait until we came back ? " Her answer, incriminating
the prisoner, was admitted in evidence as corroboration of her story.

Ridley, J. "It was contended for the prisoner that the evidence
was inadmissible — first, because the answer made by the girl was

not a complaint, but a statement or conversation, having been made

in answer to a question and secondly, because, as Keeiah Parkes
;

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