R v Viola

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date10 May 1982
Judgment citation (vLex)[1982] EWCA Crim J0510-4
Docket NumberNo. 1052/B/82
CourtCourt of Appeal (Criminal Division)
Date10 May 1982

[1982] EWCA Crim J0510-4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

The Lord Chief Justice of England (Lord Lane)

Mr. Justice Skinner

and

Mr. Justice Taylor

No. 1052/B/82

Regina
and
Michael Viola

MR. R. WAKERLEY, Q.C. and MR. J. SAUNDERS appeared on behalf of the Applicant.

MR. B.R. ESCOTT-COX, Q.C. and MR. D. JONES appeared on behalf of the Crown.

MR. A. GREEN appeared as Amicus Curiae.

THE LORD CHIEF JUSTICE
1

On 24th February this year at the Crown Court at Warwick, this applicant, Michael Viola, was convicted of rape and sentenced to four years' imprisonment.

2

He now applies for leave to appeal against that conviction. We give him his leave and, with Mr. Wakerley's consent on his behalf, we treat this as the hearing of the appeal.

3

The issue for the jury in this case was one of consent and the facts, in so far as they are material, were as follows. The complainant was 22 years of age. She lived in a maisonette in Coventry with two young children of her own. There was no dispute that about half an hour before midnight on Tuesday 8th September 1981 the appellant came to her door. The reason why he had come there was this. He had, it seems, been in some trouble with the police over the driving of a motor car, and he had parked the vehicle and then thrown the keys into a doorway. He knocked on the door of the complainant's maisonette in order to try, so he said, to find the keys. She by fetching a piece of lighted paper assisted him in that search and, according to her, let him inside the maisonette in order that he could look out of the window to see whether the police were still waiting for him or looking for him. There was a slight acquaintanceship between the two of them. It seems that he and she on one occasion had danced togdher.

4

The complainant's version of events thereafter is this. Once inside, the appellant told her that he fancied her, sat next to her on the sofa, whereupon she asked him to go and got up. Then, according to her, he seized hold of her, butted her in the face with his head, he pulled her hair and, when she started to scream, he threatened to knock her out and to stab her. He, according to her, ripped her knickers and when she was on the sofa he raped her.

5

On the other hand the appellant's version of events was that when he knocked on the door in order to get assistance, the complainant invited him in for a drink. They sat on the sofa for a while, kissing and so on, and then intercourse took place between them with her fully consenting to the act.

6

The first complaint proper made by the complainant herself seems to have been on Friday, that is some considerable time after the alleged event. It was after that complaint and after she had been seen by the police on the Friday that she was examined by the police doctor and also by her own doctor, and it is plain that at that stage she was found to have swelling across the bridge of her nose and bruising round the eye.

7

The police interviewed the appellant on Friday evening. He first of all said that he never touched her, that he had not been involved in any trouble with the police and when the complaint was put to him he said that it was all a lie and referred to the complainant in highly uncomplimentary terms. Then at the police station he changed his story, admitted that he had had intercourse with the complainant, but that she consented to it and, according to the police, he admitted that he had butted her with the head, but he said that that took place after the intercourse and not before it. The appellant in evidence denied having made any admissions to the police with regard to butting the complainant in the face.

8

There were three defence witnesses who gave evidence that shortly after the alleged rape and a matter of 48 hours or so before the complainant was examined by the doctors, they had seen her and that she had no injuries upon her face. Certainly so far as Mr. and Mrs. Burns are concerned, they said that she did not appear to have any injuries. The complainant's boy friend or ex-boy friend – there is some dispute as to the precise state of affairs between them – said that he saw her shortly afterwards and saw a slight scratch on her nose but no more.

9

The jury came to the conclusion by a majority verdict that the offence had been made out.

10

The principal ground of appeal is that the learned Judge was wrong in preventing the defendant from cross-examining the complainant about three separate matters. The first matter was a suggestion that during the afternoon and evening of the Tuesday – it will be remembered that the rape was alleged to have taken place at very shortly before midnight on that day – and immediately prior to the alleged act of rape, this complainant was making sexual advances to two men who visited her flat; the next matter was that during the afternoon of 9th September the complainant had sexual intercourse with her boy friend, or recently discarded boy friend; and finally, on the morning of 9th September, that would be about eight or nine hours after the alleged act of rape, there was a man in the complainant's flat on the sofa wearing nothing except a pair of slippers.

11

So far as this aspect of the appeal is concerned, it raises once again the problem of the application of section 2 of the Sexual Offences (Amendment) Act 1976. We have to determine whether the Judge was right or wrong in refusing to allow the suggested questions to be put.

12

Section 2 of the Act reads as follows:

13

"(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant.

14

"(2) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made to him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked."

15

It is, we think, apparent from those words, without more, that the first question which the Judge must ask himself is this: Are the questions proposed to be put relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put? If they are not so relevant, that is the end of the matter.

16

We have been referred to two unreported cases which are in point so far as that aspect of the matter is concerned: the first is Harris (Ref. No. 745/B/79, a decision of this Court on 12th June 1979) and the second is Lester (Ref. No. 5450/C/78, again a decision of this Court on 6th May 1980).

17

The second matter which the Judge must consider is this. If the questions are relevant, then whether they should be allowed or not will of course depend upon the terms of section 2, which limits the admissibility of relevant evidence. That decision has been the subject of judicial consideration first of all by Mr. Justice May (as he then was) in R. v. Lawrence (1977) Cr. L.R. 492. At page 493 there is a passage which is taken verbatim from the transcript of the ruling, and reads as follows:

18

"The important part of the statute which I think needs construction are the words 'if and only if he [the judge] is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked'. And, in my judgment, before a judge is satisfied or may be Baid to be satisfied that to refuse to allow a particular question or a series of questions in cross-examination would be unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, if allowed, might reasonably lead the jury, properly directed in the summing up, to take a different view of the complainant's evidence from that which they might take if the question or series of questions was or were not allowed."

19

That statement was approved by this Court in R. v. Mills (1979) 68 Cr. App. R. 327. Lord Justice Roskill giving the judgment of the Court said:

20

"The second ground of appeal is different in character. It was alleged that the complainant had had a good deal of earlier sexual experience. As is well known, in former times cross-examination in rape cases was permitted with a view to attacking the character of the complainant on the ground that she had such previous sexual experience. That practice was the subject of widespread public condemnation and ultimately the Sexual Offences (Amendment) Act 1976 was passed."

21

Then the learned Lord Justice reads the contents of section 2 and continues as follows:

22

"Application was made during cross-examination of this complainant by Mr....

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