R v Spooner; R v S
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THOMAS |
| Judgment Date | 25 May 2004 |
| Neutral Citation | [2004] EWCA Crim 1320 |
| Docket Number | Case No: 2002/5776/D4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 May 2004 |
[2004] EWCA Crim 1320
Lord Justice Thomas
Mr Justice Holland
His Honour Judge Michael Baker QC
(Sitting as an Additional Judge of the Court of Appeal)
Case No: 2002/5776/D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
HH JUDGE SIMPSON
Mark Evans QC for the Appellant
John Hillen for the Respondent
On 6 June 2002 the appellant was convicted at the Crown Court at Maidstone Before HH Judge Simpson and a jury of 12 counts of indecent assault, 1 count of buggery, 3 counts of rape and 1 count of gross indecency; these were specimen counts. He was sentenced to 12 years imprisonment. He appeals against conviction by leave of the Single Judge.
The sole ground on which the safety of the conviction is challenged relates to the admission of evidence of recent complaint; it was contended that the evidence of the complaint was not consistent with the evidence of the complainant and should not therefore have been admitted. It is possible to summarise the evidence quite briefly.
The evidence
The appellant was the stepfather of S, the complainant who was born in June 1979. It was the prosecution case that the appellant began abusing her when she was 9 or 10 and this continued until she left home at the age of 19 in 1999. It was S's evidence that she had been abused on an almost daily basis in the early hours of the morning. The abuse began with the appellant touching her indecently by putting his hand up her nightdress and lying on top of her and touching her. That form of abuse, S said, continued until she left home at the age of 19. From the age of 10 or 11, she was also subjected, on her evidence, on a regular basis to much more serious sexual abuse, including digital penetration of her vagina, and vaginal and anal sexual intercourse. The differing counts in the indictment reflected the differing sexual activity of which complaint was made. The defence was a denial of the accusations.
In the course of S's evidence in chief, the Crown applied to the Judge to adduce the evidence of her complaint to a school friend C, to whom S said she had complained when she was 13 or 1Objection was taken by the appellant to the admissibility of that evidence on the ground that the evidence set out in the statements of S and of C was not consistent with the evidence of the sexual conduct which S alleged the appellant had committed against her. The Judge did not deal with the issue of consistency in his ruling; the reasoning in the ruling dealt with an objection (which it was agreed before us had not been made on behalf of the appellant) that the complaint was not recent in the sense of being contemporaneous; if any such objection had been made, it clearly would have been bound to fail, as the complaint was said to have been made on the day or days following the abuse alleged. On the basis set out in his ruling, the Judge permitted the evidence to be given.
The evidence then given by S (which was largely in accordance with her statement) can be summarised. She said she had spoken to C at the age of about 13 or 14; she had little recollection, but thought she had only had one conversation. She had told C that the appellant had come in and had done things to her; she had told C what was happening. When asked to say what she had said to C, she answered that she had talked of the matters that had been spoken of during the trial. That was a clear reference not merely to the indecent assaults, but to the much more serious penetrative assaults.
The evidence of C was that at some time around the age of 12 or 14 she recalled that on 5 or 6 different occasions S had spoken to her. S had told her that "it happened last night" when asked to explain what "it" was, C's evidence was that S had said that the appellant had touched her, had lain on top of her and put his hand up her nightdress.
When the learned Judge came to sum the case up to the jury, he directed them on the issue of recent complaint in the following terms:
"She did then tell her best friend at school, the witness [C], something (but not in much detail) about what she alleged the defendant was doing to her. She remembers one conversation, but cannot recall others. [C] has told you that there were several occasions when [S] told her that the defendant had done something to her the previous night.
It is important to realise and remember that [C] did not witness any such conduct by the defendant. She therefore is not a witness as to what happened to [S], but only as to what [S] reported to her. The effect of that is, therefore, limited to what lawyers call "consistency" of the complaints made by [S] and goes no further, apart from serving to establish, if you accept that evidence, that [S] did complain in some measure of the defendant's alleged conduct when she was about 14. In other words, [S] did not wait until the time when the matter was reported to the police last year before speaking out.
The prosecution say that it would also serve to rebut the defence suggestion put to [S] in cross-examination that she made up this whole series of allegations some time after she left home at the age of 19 in order to gain some advantage in obtaining council accommodation. That suggestion, say the prosecution, is wholly inconsistent with [S] having complained in whatever limited form to [C] when she was about 14.
The reason why [C]'s evidence cannot provide support for any particular type of misconduct alleged by [S] against the defendant is of course because what [C] has told you comes itself from [S]. In other words, it is not independent support regarding any of these allegations because [C] was not there to see what if anything was happening."
The Judge later in the summing up summarised the evidence of S, but did not refer again to the evidence of C.
The submissions
In the course of the oral argument before us and in subsequent written submissions on the case law to which we will refer, the issues were refined to two:
i) What degree of consistency was required for evidence of recent complaint to be admissible?
ii) Was the direction given by the Judge sufficient in the circumstances?
It is important to point out that although the summing up refers to the evidence being used to rebut a suggestion of recent fabrication, no separate argument was addressed to us on that issue. This was because the evidence was admitted before the issue of fabrication was raised; it was the case for the appellant that if the evidence had not been admitted during examination in chief of the complainant, the allegation of fabrication made in cross-examination might not have been put.
The submissions made to us can be shortly stated:
i) On behalf of the appellant:
a) Evidence of recent complaint was only admissible to establish the consistency of the evidence of the victim of the sexual assault; the evidence therefore had to be consistent in so far as it related to the ingredients of the offence charged.
b) The principles had initially been developed at a time when attitudes towards women were very different and the older cases should be approached with considerable caution.
c) The cases in which the law had been developed all dealt with complaints in the context of events that had recently taken place; in cases such as the present, a different approach and special caution were needed.
d) The evidence given by C was of S complaining of touching; there was no complaint about the more serious penetrative offences. That evidence was not therefore consistent with the evidence that S had given of what the defendant was doing to her at that time; by the time S spoke to C, it had been S's evidence that the appellant had for some time been regularly abusing her by digital penetration and rape.
e) The evidence of C in relation to the complaint was not evidence consistent with the ingredients of the offences which by then were allegedly being committed. Evidence of touching added nothing and was inconsistent with the conduct alleged. It should not therefore have been admitted, particularly as it was highly prejudicial.
f) In the alternative, if the evidence was admissible, the judge's direction to the jury was, in any event, insufficient in that it did not draw attention to the inconsistencies between the evidence of C about the complaint –touching under her nightdress —and S's evidence about what the defendant was doing to her at the time – digital penetration and rape.
ii)For the prosecution, it was contended:
a) There was a sufficient degree of consistency if the evidence of the complaint was consistent with the circumstances in which an offence of a sexual nature had been committed. The test to be applied was whether the complaint referred to the same series of events as that given in the evidence given at trial by the complainant.
b) S's evidence was that the assaults which comprised touching her under her nightdress had continued throughout the period; the evidence of C was therefore consistent with those offences.
c) As to the more serious offences, it was not uncommon in such cases for a complainant only to be able to bring herself to refer to some of the conduct when making a contemporaneous complaint and not to its full extent; what was therefore important was that there had been a complaint of sexual abuse and that was consistent with the circumstances in which an offence of a sexual nature had been committed.
d) It was in accordance with the basic principle that such evidence should be admissible and the judge...
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