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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Evans, R v [2009] EWCA Crim 2668 (16 December 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2668.html Cite as: [2009] EWCA Crim 2668

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT GLOUCESTER
(Mr. Recorder Bartlett)
T20087169

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 December 2009

Lord Justice Moore-Bick :

1. On 11^th March, 2009 in the Crown Court at Gloucester before Mr. Recorder Bartlett the appellant was convicted on twenty counts of an indictment charging him with offences contrary to the Sexual Offences Act 2003 against his daughters A and R when they were aged between 8 and 17 years. He was sentenced to 16 years' imprisonment.
2. The offences of which he was convicted were two assaults by penetration on a child under 13, one assault by penetration, two rapes of a child under the age of 13, four other rapes, two attempted rapes, four sexual assaults on a child under the age of 13, two offences of causing or inciting a child under the age of 13 to engage in sexual activity, two sexual assaults and one offence of causing a person to engage in sexual activity without consent. He now appeals against conviction by leave of the single judge.
3. The crown's case against the appellant was based almost entirely on the evidence of A and R, each of whom had given evidence in the form of a pre-recorded video interview and had been subject to cross-examination over a closed circuit video link in the usual way. In their interviews both girls described being sexually abused by their father in a variety of ways over a considerable period of time. In her interview A said that she had also been sexually abused by her brother, J. The appellant denied all the allegations made against him by A and R. In interview J admitted one offence of oral sex against A; otherwise he too denied the allegations she had made against him. The crown for obvious reasons decided to try the appellant first. By the time of the appellant's trial J had been arraigned on an indictment charging him with various sexual offences against A. At a plea and case management hearing he had pleaded not guilty to all counts.
4. This appeal arises out of an application made by counsel for the appellant during the course of the trial under section 41(1) of the Youth Justice and Criminal Evidence Act 1999 for leave to cross-examine A about the allegations that she had made against J. The purpose of doing so was to show that those allegations were false and thereby to cast doubt on her reliability as a witness and on the various allegations that she had made against her father. The Recorder refused to allow such cross-examination and it is now said that his refusal renders the appellant's conviction unsafe.
5. It is necessary at this point to describe in a little more detail some of the allegations made by A against the appellant and J. Most of A's interview, which lasted well over an hour, was taken up with her description of the ways in which she had been abused by the appellant. They were numerous, but the only allegations that are directly material to the present appeal were that he had attempted to penetrate her vagina on many occasions, both with his penis and with his finger, but had consistently failed to do so because she was too small. At an early stage in her interview A had also mentioned her brother, J, and towards the end of the interview after the police officer had finished asking her about her father he returned to the subject of her brother. A then made various allegations of abuse by J, including allegations of oral sex and sexual intercourse, both vaginal and anal.
6. Counsel for the appellant based his application for leave to cross-examine A on a number of matters which he submitted provided solid grounds for concluding that A's allegations against J were false. They were

(i) that J had denied penetrating A;

(ii) that there was an obvious inconsistency between her accounts inasmuch as she was saying that J had been able to penetrate her vagina easily with his penis, whereas the appellant had been unable to penetrate her vagina either with his penis or his finger;

(iii) that as her brother J did not have the same degree of influence over A as did the appellant and so was less likely to have been able to persuade her to comply with his demands;

(iv) that A had not told her sister R that she had been abused by J, despite the fact that, according to A, she and R spoke to each other every evening about the abuse they had suffered at the hands of the appellant; R confirmed that A had not mentioned abuse by J;

(v) that medical examination of A disclosed no signs of vaginal or anal abuse and that there was nothing in her medical records to indicate abuse of the kind she had described;

(vi) that neither the appellant nor any other the other five children had been made aware of any such abuse by J;

(vii) that although A said that J had been abusing her regularly for about two years, she had not complained to anyone at school or at home.

7. When refusing leave to cross-examine A the Recorder referred to the case of R v T and H [2001] EWCA Crim 1877, [2002] 1 WLR 632 in which this court drew a distinction between cross-examination about former statements made by a complainant and cross-examination about the complainant's sexual behaviour in the past. Keene L.J. giving the judgment of the court in that case said:

"41. . . . it is open to a judge to guard against abuse of the system. The defence, wishing to put questions about alleged previous false complaints, will need to seek a ruling from the judge that section 41 does not exclude them. It would be professionally improper for those representing the defendant to put such questions in order to elicit evidence about the complainant's past sexual behaviour as such under the guise of previous false complaints. But in any case the defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue. If those requirements were not met, then the questions would not be about lies but would be " about [the] sexual behaviour of the complainant" within the meaning of section 41(1). The judge is entitled to seek assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue."

8. On the basis of what had been said in that case the Recorder held that in order for cross-examination to be permissible the defence had to establish a proper evidential basis for asserting that any previous statement about which it wished to question the complainant had been made and was untrue. In the present case he was satisfied that the statements had been made; there was really no dispute about that since they were made by A in the course of her recorded interview. However, he did not think that there was any sound evidence to suggest that they were untrue. He noted that J had admitted that A had touched his penis on one occasion and that she had sucked his penis but had denied the more serious allegations of vaginal and anal rape, as well as the allegation that he had persuaded A to masturbate him. The Recorder considered that J's admissions, although limited in nature, tended to suggest that what she had said was true and certainly did not suggest that her allegations were false. His denials of her other complaints did not tend to suggest that they were false either. On that basis he held that the test set out in R v T and H was not satisfied.
9. Mr. Steen, who appeared for the appellant at trial and on this appeal, submitted that the Recorder was wrong to refuse leave to cross-examine A about the allegations she had made against J. There was, he submitted, sufficient evidence before the court to justify drawing an inference that those allegations were false and that the jury therefore ought to have been given the opportunity of evaluating for themselves A's truthfulness in the light of that evidence and of whatever emerged in the course of cross-examination. There was a real possibility, he submitted, that the jury might have decided that the allegations against J were false, and if they had done so, that could have had a significant effect on the view they took of her allegations against the appellant.
10. In support of that submission Mr. Steen relied on the various matters set out in paragraph 7 above. He also drew our attention to the case of R v AM [2009] EWCA Crim 618 in which Dyson L.J. giving the judgment of the court said:

"22. The difficulty lies in what constitutes a proper evidential basis. In our judgment, it is less than a strong factual foundation for concluding that the previous complaint was false. But there must be some material from which it could properly be concluded that the complaint was false. In Garaxo at paragraph 14 this court considered that there was a proper evidential basis if there was material such that, depending on the answers given by the complainant in cross-examination, the jury could have been satisfied that the previous complaint was untrue, or there was material which was capable of founding an inference that the complaint was untrue.

. . .

25. It is a striking feature of this case that the judge did not ask himself whether, on the material before him, depending on the answers given by the complainant, the jury could have been satisfied that the previous complaint was false. That is what was entailed by the question whether there was a proper evidential basis for the assertion that the complaint was false. If the judge had focused on the question whether on the material before them the jury could have been satisfied that the complaint was false, he should have concluded that the jury could have been so satisfied. As Sweeney J. said in the course of argument, there were a number of features relating to the previous complaint which could have led a jury to this conclusion. First, there was the interval of four months between the date of the alleged rape and the date when the complainant reported it to the police. Secondly, there were aspects of the complaint which were puzzling and which caused the investigating police to be sceptical: some of them merit separate mention, but, for example, the police thought it was strange that, according to her account, the complainant had not seen the alleged attacker since the date of the alleged offence although they were members of the same circle of friends. It is also to be noted that on page 2 of the Crime Investigation Plan the police listed a series of questions that they would have wished to ask the complainant about her account in order to test it. Thirdly, there is the fact that the complainant did not follow through with her complaint and would not allow the police to pursue an investigation into what was, if her account was true, a very serious offence. Fourthly, the complainant was willing to give the police only sufficient information to enable her to achieve her goal of being re-housed. Her desire to be re-housed, which was her motive for reporting the matter to the police, raised questions as to her true reasons for making that report."

11. The cases show that although a defendant has a right to cross-examine the complainant about the truth of a previous statement, the court must be vigilant to ensure that that right is not abused. We doubt whether there is in reality any significant distinction between the tests formulated in T and H and AM respectively. The point being made in both cases is that in order to render such questioning legitimate the defendant must be able to point to material that is capable of supporting (though not which must inevitably support) the inference that the previous statement may be false. In the absence of such material any suggestion that it was false is merely a matter of speculation leading to the conclusion that the real purpose of cross-examination is to undermine the complainant's general credibility.
12. We begin by considering whether the Recorder's decision to refuse leave to cross-examine A was correct in the light of the material then before the court. In our view the starting point must be a careful consideration of the material which the appellant relied on as providing a basis for inferring that A's allegations against J were false. It is convenient to start with the medical evidence, item (v) above. Two doctors were called to give evidence, Dr. Pillai and Dr. Vortsman. Dr. Vorstman had examined A on 10^th September 2008, about 6 weeks after the last episode of abuse of which she had complained. He found no evidence of traumatic injury to the anus or vagina. Dr. Pillai was called as an expert witness. They agreed that the findings were inconclusive because in most cases of rape and consensual intercourse there are no visual diagnostic findings in the genital region, although abnormal findings are more common when children are examined promptly following a sexual assault. In these circumstances we regard the medical evidence as neutral. Similarly, the fact that J had denied having sexual intercourse with A (item (i)) did not of itself make it less likely that she was telling the truth. Nor do we think that a great deal of weight can be attached to the differences in status within the household of the appellant and J (item (iii)). Whether the fact that the appellant was A's father put him in a stronger position to make sexual demands of her depends very much on the nature of her relationship with him and her brother respectively. In our view the difference in the nature of those relationships provides very little, if any, support for the suggestion that the complaints she had made against J were false.
13. The two most powerful matters on which the appellant could rely were the apparent inconsistency between J's alleged ability to penetrate her vagina with his penis repeatedly and without difficulty over a long period and her father's alleged inability to penetrate her vagina either with his penis or his finger, despite many attempts to do so (item ii) and her failure to mention to R or anyone else that she was being abused by J, despite the fact that it had continued for a long time (items (iv) and (vii)).
14. At this point it is necessary to revisit A's evidence in order to understand more clearly exactly what she had said about J. At an early stage in describing what J had done to her A described oral sex beginning about two months after her mother had died. She said that she had then done it "all the time", meaning, as we understand it, regularly. A little later she said that J had touched her breasts and rubbed her vagina and had had anal intercourse with her, doing everything that the appellant had done to her. She then said that J had sex with her and referred to his putting his penis in her vagina. We do not think that there can be any doubt that that is what she meant because she refers to refusing to allow him to ejaculate inside her because she was about to start her period. She also said that she was frightened that she could become pregnant. She said that the last occasion on which something had happened with J was two days before her interview when J persuaded her to masturbate him, so she appears to have been describing abuse of one kind or another by J stretching over almost the whole of the period between the death of her mother and the date of the interview. Finally, she said that J had had anal intercourse with her "about 25% of the time", by which we assume she meant that it had occurred on about a quarter of the occasions on which abuse of some kind took place. She described the act of anal intercourse in a way that is suggestive of personal experience.
15. It is difficult to tell from A's evidence when J began to abuse her, how often and over what period; all one can say with any confidence is that he appears to have had sexual intercourse with her more than once and probably several times over a period of between one and two years and that it was mostly vaginal but on an appreciable number of occasions was anal. We think that there is therefore a basis for saying that, if A's account was correct, J was able to penetrate her vagina with his penis on various occasions throughout the period in question without any great degree of difficulty, or at any rate not enough difficulty to cause her to mention it. It is also clear that she said that the appellant had been unable to penetrate her vagina with his finger and although she mentioned that on one occasion only, the nature of her answer suggests that he had not succeed in penetrating her with his finger on any occasion. There are subsequent references to the appellant's rubbing her vagina, but none to penetration.
16. Mr. Steen understandably laid a good deal of emphasis on what he submitted was the discrepancy between J's ability to penetrate A's vagina with his penis and the appellant's inability to penetrate her with his finger. We were initially troubled by that, but it is necessary to bear in mind that the purpose of the proposed cross-examination was to show that A was lying about what J had done to her and therefore was likely to be lying about what the appellant had done. Having read the transcript of A's evidence as a whole, we are struck by the length of the interview and by the generality and lack of detail in her account. Moreover, there was a complete absence of evidence of a kind that might explain why J was able to penetrate A although her father could not. (There was no evidence, for example, which would have enabled the jury to compare the size of the appellant's fingers with that of J's penis.) Sometimes the discrepancies between different parts of a child's account are so glaring as to cause one to doubt the truth of what he or she says, but this is not a case of that kind. The fact that the appellant was not able to penetrate A's vagina with his finger does not of itself provide a reliable basis for inferring that her complaint against J was false.
17. The fact that A made no complaint of abuse by J to R or to anyone else within or outside the family does not in our view carry the matter very much farther. She said that she was motivated to discuss her father's actions with R because she had learnt that he was doing similar things to R. There was no suggestion, however, that J had abused R in any way and her failure to tell R that she was being abused by J does not in our view provide a strong basis for inferring that her complaints against him were false. Even less reliance can be placed on the fact that she did not complain to anyone outside the family.
18. If the matter fell to be judged simply by reference to the evidence that was before the jury at the time when the Recorder was called upon to make his ruling we should be inclined to hold that his decision was justifiable. However, the matter would not have rested there because Mr. Steen accepted that, if A had been cross-examined in the manner proposed, the jury would have had to be told that J had admitted that he had persuaded A to perform oral sex on him. They would thus have become aware that her allegations against him were at least partly true, which we think would have been likely to undermine the suggestion that the rest had been made up.
19. Since the trial matters have moved on because J has pleaded guilty to a number of offences of rape against A involving oral penetration on between five and ten occasions and anal penetration on one occasion. In deciding whether the appellant's convictions are safe it is necessary for us to consider whether there is a real possibility that a jury, having heard A cross-examined, might conclude that her allegations of anal and vaginal penetration by J were false and that it was therefore possible that her allegations against the appellant were also false. In doing so we have to bear in mind that it would not have been possible for A to be cross-examined in that way without the jury's being told about J's admissions and we consider that there is no real prospect that in those circumstances they would draw the inference that she was lying.
20. For all these reasons we are satisfied that the convictions in this case are safe and that the appeal must be dismissed.