R v AM

: On 29th August 2008, at Reading Crown Court, the appellant was convicted by a majority of ten to two of sexual assault. He appeals against conviction by leave of the single judge.

The prosecution case, in brief, was as follows. The complainant and the appellant were neighbours. The complainant's account of the events of 29th March 2007 was as follows. At about three o'clock in the afternoon the complainant, who was about 24 years of age at the time, invited the appellant into her flat for a chat. He had been into her flat three or four times previously. He asked if he could use her toilet. She noticed that he had an erection. When he returned she asked him what was wrong. He took her hand and led her into the bedroom. He dropped his trousers and lay on the bed, exposing his erect penis. He said, “Suck this, you'll like it”. He got up and pushed her onto the bed and twisted his legs over her and straddled her chest. She was telling him to get off. He tried to force his penis into her mouth. She tried to push him off her. He continued to try to force his penis into her mouth. She pushed his shoulders and he fell over onto the bed. She stood up and walked towards the door. She tried to open it but he pushed it shut. Eventually she managed to open the door. She told the appellant to leave and he did. She telephoned a friend, FS, and told her what had happened. At about 5.30 that afternoon she also told her sister, KS, what had happened and the police were called.

In brief this was the account that she gave to the jury. FS and KS also gave evidence saying that the complainant had complained to them that she had been sexually assaulted by “Yank” (“Yank” is the nickname of the appellant).

The appellant gave evidence. He said that he did not go into the complainant's flat on 29th March, although he had been to her flat more than ten times. There had been no physical contact between the complainant and himself; in other words, the complainant's account was a fabrication.

The judge was asked on behalf of the appellant to grant leave pursuant to section 41 of the Youth and Criminal Evidence Act 1999 (“the 1999 Act”) to cross-examine the complainant and for evidence to be adduced about a previous allegation of rape made by her in 2001 which, it was said, was untrue. The judge refused to grant leave. It is his refusal to grant leave which forms the basis of this appeal.

The relevant law is not in doubt. Section 41(1) of the 1999 Act provides that if at a trial a person is charged with a sexual offence, no evidence may be adduced by or on behalf of the defendant about any sexual behaviour of the complainant without the leave of the court, nor can any question be asked in cross-examination on behalf of the defendant about any sexual behaviour of the complainant without such leave. That is the general rule. Sexual behaviour is defined by section 42(1)(c) as “any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused”.

It has been held that a distinction is to be drawn between questions about sexual behaviour itself and questions concerning statements about such behaviour: see, for example, R v BT [2002] 1 WLR 632, [2002] Cr App R 22. Thus, questions about a complainant's previous false complaint of sexual assault or her failure to complain about a previous assault do not relate to her sexual behaviour, but to her past statements or failures to complain. But if there is no proper evidential basis to suggest that the previous complaint was in fact false, it has been held that such question falls within the ambit of section 41.

The first question, therefore, is whether the proposed cross-examination or evidence is about any sexual behaviour of the complainant. If it is not, then leave is not required under section 41 and that is the end of the enquiry so far as the 1999 Act is concerned. If, however, the proposed cross-examination or evidence is about any sexual behaviour of the complainant, then section 41(2) provides that the court may give leave but may not do so unless it is satisfied (a) that subsection ( 3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case. Subsection (3) applies if the evidence or question relates to a relevant issue in the case and, inter alia, that issue is not an issue of consent. Subsection (5) is not material to the present case. Subsection (4) provides that for the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose, or main purpose, for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

The facts relating to the previous allegation of rape are these. On 26th September 2001 the complainant made an allegation to the police that she had been raped at her then home address four months earlier on 19th May 2001. She alleged that an old friend called at her home uninvited. They talked to each other while she sat on her bed. He then tried to kiss her and she told him to get off, but he pushed her onto her back and restrained her by her arms. He told her “I know you want it” and then raped her. She pushed him off and told him to leave, which he then did.

The complainant did not report the alleged incident to the police at the time. She only did so on 26th September, and then only because she was told by a housing officer at Reading Borough Council that she would not be able to be re-housed, which is what she wanted, unless she made a complaint to the police. The complainant told the police that the only reason why she was reporting the alleged incident was in order to be re-housed by the Council and that she would not have reported the matter otherwise. She said that she did not want the matter to be investigated or taken any further and that she would not support any prosecution or attend court. In her witness statement dated 26th September 2001 she said that she did not tell the police in the first place because she was “scared of repercussions, this is because Nathaniel, [the alleged attacker] has a lot of friends that I know and I was scared of what they or Nathaniel would do”.

A police memorandum dated 9th October 2001 states:

“I have spoken with D about this allegation. She insists that the assault occurred but again states she does not want the police to investigate the allegation and she fears for her personal safety and welfare should she continue and again stated the only reason a statement was made in the first place was for a Council house move and this is her sole reason otherwise we would not have been informed, she does not expect an investigation to take place on her behalf …

Her main fears seem to be being shunned by friends should this allegation be made public although she does fear violence from Charles should he be questioned by the police. She has not seen him since this offence took place which I find strange as she states they have the same circle of friends.”

The appellant had, however, sought help within three days of the alleged incident from her general practitioner, Dr Richards, on 22nd May. Dr Richards made a statement on 3rd October 2001. She said that the complainant came to the surgery in a distressed state. She complained that she had been raped three days earlier by a man she knew in her own flat. She was now bleeding and had abdominal pain. She had sought help from the Family Planning Service on 21st May and had been given post coital contraception. Dr Richards impressed on her the importance of contacting the police and asking for officers who deal with rape victims to advise her. Dr Richards said that the appellant felt unable to do this and seemed reluctant and fearful to take the matter any further. She gave the appellant some sedatives in the form of tablets to help her to sleep.

In summary, that was the material relating to the alleged rape which the judge had to consider when dealing with the section 41 application. There was, however, also an unsigned and undated statement by OS, which includes the following:

“About 8 months ago I was told by a close friend of mine, Antoinette (currently in hospital for cancer) that D had told her that D's ex-boyfriend had upset her so she was going to make an allegation of rape against him to get him into trouble. I think this is because he cheated on her. Antoinette...