R v Funderburk
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HENRY |
| Judgment Date | 09 October 1989 |
| Neutral Citation | [1989] EWCA Crim J1009-7 |
| Judgment citation (vLex) | [1989] EWCA Crim J1009-1 |
| Docket Number | No. 88/5980/X2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 October 1989 |
[1989] EWCA Crim J1009-1
Lord Justice Watkins
and
Mr Justice Henry
No. 88/5980/X2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR P P SHEARS appeared on behalf of the Appellant.
MR B HILLMAN appeared on behalf of the Crown.
On 28th September 1988 in the crown court at Reading, before McNeil J, the appellant was convicted of three counts of sexual intercourse with a girl of 13 years – in law, a child – and was sentenced to consecutive terms of 18, 15 and 12 months' imprisonment. The three counts were specimen counts covering 10 or 11 alleged acts of intercourse.
The first count covered the month of November 1987, the second, December 1987 and the third, February 1988. He now appeals against conviction and sentence by leave of the single judge.
The facts are that the appellant was a master sergeant in the United States airforce who lived with Joanne Potts in Berkshire. Until about Christmas 1987 a friend of his had lived with a lady who was the mother of the child, the complainant, who was then aged 13. The mother herself was only 31.
At Christmas the child, who had been living with her grandparents, began to live with her mother and step-brothers. They moved in with the appellant and Miss Potts as lodgers. They left at the beginning of March after arguments concerning money. It was after that parting that these events came to the notice of the authorities.
The complainant gave evidence that she began to have a crush on the appellant when in November 1987 he took her to a nightclub as a reward for babysitting for him. She described in some detail in the witness box the acts of intercourse which had occurred, as I say, on 10 or 11 occasions.
The transcript of her evidence show that it came out in a way which strongly suggested that on the occasion of the first act of intercourse, which she said was a week or so after the nightclub visit, she was a virgin. She had been asked during the evidence-in-chief in the introductory questions about her previous boyfriends and the innocence of her association with them. She said that the appellant had said to her: "You've got to do it one day; why not now?" Then followed her description of the penetration, the pain caused by it and the bleeding which she later discovered.
It being made clear at the same time that she was not menstruating at the time, it seems to us that it must have been perfectly clear to the jury that in giving that description of the first occasion she was describing the loss of her virginity.
The appellant's defence was that the child was lying from beginning to end. Her motive in this was to support her mother who - which the child agreed in the witness box – had it in for the appellant as a result of the disputes which had arisen between them.
One difficulty which the defence had to meet was if she was lying, how could so young a girl have given so detailed and varied accounts as the accounts that she in fact gave of the acts of intercourse? The answer which the defence suggested as to this was that despite her age she was both experienced and sexually interested, and that she had either transposed experiences which she had had with others to this appellant and or fantasised about experience with the appellant on whom she freely admitted having had this crush. In support of that defence counsel wished, and it is this matter which gives rise to the appeal against conviction, first to put to her that she had told a potential defence witness, Joanne Potts, that before the first incident complained of she had had sexual intercourse with two named men and consequently she had wanted to undergo a pregnancy test.
As will be seen, counsel was not permitted to put those questions in cross-examination. For convenience we refer to them as the disputed questions. Having laid the basis in cross-examination, counsel wished subsequently to call that witness, Joanne Potts, to give evidence of that conversation. As will be seen he was not able to do that either, and we call this the disputed evidence.
Counsel made the application on the basis not only that it went to her credibility but also on the basis that it went to an issue in the case. Somewhat surprisingly when that application was originally made there was no mention of Denman's Act until the judge brought it up himself after the overnight adjournment. This was one of the difficulties with which the judge had to cope.
The case was heard on circuit. Library facilities are often scant there as they seemed to have been in this case. None of the authorities which have been cited to us were cited to the trial judge. He had a difficult task.
The ruling which is challenged in this appeal is the judge's ruling that whether or not the child was a virgin at the time of the first incident was not an issue material to the charge of unlawful sexual intercourse. He commented that the prosecution had rightly avoided any enquiry as to her virginity.
It is right to say that the prosecution had never asked her directly the question, "Were you a virgin at the time?" although it was clearly implicit from her evidence that that was what she was saying she was. The judge went on to rule that if the child had, as the defence contended, implicitly averred her previous virginity her previous inconsistent statement, namely, that she had had sexual intercourse with two other men before this date, could not be put to her as a challenge to her credibility, as her virginity was, in the judge's words, "immaterial to establishing or refuting the charge that this defendant had sexual intercourse with the girl".
For our part we are quite satisfied that both the prosecution and the child herself were putting her forward as a virgin before the first incident and that the jury cannot have doubted she was telling them of the loss of her virginity.
Before we come to answering the questions posed we think it necessary to go back to first principles. One starts with the obvious proposition that in a trial relevant evidence should be admitted and irrelevant evidence excluded. "Relevant" means relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put, as Lord Lane LCJ put it in the case of R v. Viola [1982] 75 Cr. App. R. 125 at pages 128 and 130.
But as relevance is a matter of degree in each case, the question in reality is whether or not the evidence is or is not sufficiently relevant. For in order to keep criminal trials within bounds and to assist the jury in concentrating on what matters and not being distracted by doubts as to marginal events, it is necessary in the interests of justice to avoid multiplicity of issues where possible. In every case this is a matter for the trial judge on the evidence and on the way the case is put before him.
When one comes to cross-examination, questions in cross-examination equally have to be relevant to the issues before the court, and those issues of course include the credibility of the witness giving evidence as to those issues. But a practical distinction must be drawn between questions going to an issue before the court and questions merely going either to the credibility of the witness or to facts that are merely collateral. Where questions go solely to the credibility of the witness or to collateral facts the general rule is that answers given to such questions are final and cannot be contradicted by rebutting evidence. This is because of the requirement to avoid multiplicity of issues in the overall interests of justice.
The authorities show that the defence may call evidence contradicting that of the prosecution witnesses where their evidence:
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a) goes to an issue in the case (that is obvious);
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b) shows that the witness made a previous inconsistent statement relating to an issue in the case (Denman's Act, which we deal with below);
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c) shows bias in the witness ( R v. Phillips [1938] 26 Cr. App. R. 17);
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d) shows that the police are prepared to go to improper lengths to secure a conviction ( R v. Busby [1982] 75 Cr. App. R. 79);
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e) in certain circumstances proves the witness's previous convictions;
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f) shows that the witness has a general reputation for untruthfulness;
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h) shows that medical causes would have affected the reliability of his testimony.
All those categories listed, other than category a), might be considered exceptions to the general rule as to the finality requirement of questions put on issues of credibility and collateral matters. They demonstrate the obvious proposition that a general rule designed to serve the interests of justice should not be used where so far from serving those interests it might defeat them. On that basic summary of the law two questions arise in this case. First, should the disputed questions have been permitted as questions either going to an issue or going to the credibility of the child? Second, if so, were her answers to such questions final or could evidence be given of previous inconsistent statements relating to previous sexual activities?
We deal first with admission of the questions as going to credit. Originally counsel for the prosecution conceded that the disputed questions could be asked as going to credit, subject to the answers being final, but in the course of submissions he withdrew this concession. The question of roaming cross-examinations as to the credit of complainants in rape cases rightly exercised Parliament and such cross-examination was statutorily restricted by section 2 of the Sexual Offences (Amendment) Act 1976. I find it useful to read that section:
"2(1) If at a trial...
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Subject Index
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Subject Index
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