Angelo Hammond v The State

The appellant was convicted of rape by a regional magistrate and sentenced to ten years imprisonment. An appeal to the Cape High Court was dismissed. The complainant and the appellant (along with their respective friends) met at a beach on a Sunday, where they consumed alcohol throughout the day. At around 4pm, the appellant offered to drive the complainant home to Mitchells Plain to collect her children. Instead, he made detours to Crossroads and Westridge where more alcohol was purchased and consumed. The appellant then drove back to the beach. The central dispute was whether the sexual intercourse that occurred thereafter was consensual. The complainant alleged she was dragged by her hair, sustained a leg injury, and was raped despite her protestations. The appellant claimed the intercourse was consensual. After the incident, when fishermen arrived to help pull the appellant's vehicle from sand, the complainant appeared upset, disheveled, and told them she had been raped. Police arrived later, and the complainant was examined by a district surgeon at 1:15am. The magistrate found the complainant to be a credible witness and convicted the appellant largely based on: (1) the complaint made to the fishermen shortly after the alleged rape, which he considered negated consent; and (2) the wild state of her hair, which he considered consistent with being dragged.

• What is the proper purpose for which evidence of a complaint (first report) in a sexual misconduct case may be used?
• Whether evidence of a complaint can be used as direct evidence to negative consent or only to support the credibility/consistency of the complainant's testimony
• Whether evidence of the distressed condition of a complainant can constitute corroboration in a rape case
• Whether the magistrate misdirected himself in his assessment of the evidence and whether the appellant's guilt was proved beyond reasonable doubt

The appeal succeeded. The order of the Cape High Court was set aside and substituted with an order setting aside the appellant's conviction and sentence.

Evidence of a complaint in a sexual misconduct case is admissible solely to show the consistency of the complainant's conduct with the testimony given in court, and thereby to support the complainant's credibility. Such evidence is not admissible as direct evidence to negative consent or to create a probability in favor of the prosecution's case. To use complaint evidence as independent proof of lack of consent would be to make an impermissible hearsay use of the complaint. The complaint can only buttress the credibility of the complainant in testifying to lack of consent; it cannot itself prove lack of consent. By contrast, evidence of the distressed or emotional condition of a complainant (as distinct from evidence of the complaint itself) is admissible to prove absence of consent, though caution must be exercised where the distressed condition may be explained by other factors.

Cloete JA made several obiter observations: (1) That caution must be exercised when the emotional state of a complainant is taken into account, particularly where the complainant may have 'put on an act' or where the distress may be explained by other factors; (2) That evidence of distressed state is also admissible to show that sexual contact took place, where this is denied (illustrated by reference to the English case Ramesh Chauhan); (3) That emotional distress has greater probative value when observed by someone the complainant did not know was there (citing Redpath); (4) That the remarks in the earlier SCA case of R v M regarding complaint evidence 'negativing consent' should not be understood as establishing that this is a separate and independent purpose from showing consistency, as that precise issue did not arise for decision in that case. The Court also observed that aspects of the complainant's behavior (urinating in public, attempting to cut off her engagement ring) demonstrated irrational conduct that could explain the apparent improbability in the change of her attitude on the appellant's version.

This case provides authoritative clarification in South African law on the limited purpose for which evidence of complaints in sexual misconduct cases may be used. It definitively establishes that such evidence goes only to consistency/credibility and not as independent evidence of lack of consent. The judgment comprehensively analyzes the leading English and Commonwealth authorities and provides important guidance on distinguishing between: (1) evidence of the fact and terms of a complaint (admissible only for consistency/credibility); (2) evidence of distressed condition (admissible as corroboration and to prove absence of consent); and (3) the requirements for when emotional distress can be given weight. The case corrects a widespread misunderstanding in South African courts about the use of complaint evidence and remains a leading authority on evidence in sexual offense cases.