Practice and Procedure

R v AB (2003)

PUBLISHED March 12, 2003

Where a defendant stated that allegations of sexual abuse were untrue the prosecution were entitled to cross examine on whether the defendant could give any explanation why the victim would make up the allegations.Appeal against conviction with leave of the full court. On 13 July 2001 at Leeds Crown Court before HH Judge Adams the defendant ('B') was convicted of rape, indecent assault and attempted rape. On 6 August 2001 B was sentenced to a total of 11 years' imprisonment. B was married for 35 years and had six children. B committed the offences over a 10 year period between 1978 and 1988 on two of his daughters ('S' and 'C'). S was B's eldest daughter and when she was aged between 8 and 9 years old B had indecently assaulted her by inserting his fingers into her vagina. From then, on a weekly basis, B raped her until she was 17 years old. S left home when she was 18 and there was one final indecent assault after she left home. In 2000 S decided to bring matters into the open after C told her that when she was aged between 7 and 11 years old B had sought to rape her. On 2 November 2000 B was arrested. In interview and in evidence at trial B denied any sexual misconduct and stated that the allegations were untrue. At trial, prior to giving evidence, B sought a ruling from the judge that if he gave evidence the prosecution would not be allowed to ask if he could think of any reason why the girls had made up the allegations. The judge was referred to Canadian, Australian and New Zealand authorities. He ruled that the prosecution would be allowed to question B but could not imply that there was any burden on B to provide an explanation for the allegations, or that the burden of proof had shifted and he would tell the jury that when summing up. The ruling was based on the fact that it was common practice to put such questions to a defendant and had never been disapproved of in English courts. B appealed conviction on the ground that: (i) the prosecution should not have been permitted to question B on whether he could give any explanation why S and C would make up the allegations; (ii) the fact that B could not give an explanation could cause the jury to speculate that the allegations had to be true; (iii) it was unfair to proceed on the basis that B's inability to answer the question positively enforced S and C's credibility; and (iv) if the questions were properly permissible then the judge's summing up was defective in the way he had dealt with B's lack of knowledge of S and C's lack of motive to lie. The prosecution contended that credibility was of prime importance so the jury was entitled to have the fullest assistance from the evidence. Any other conclusion would allow a gap to develop between the law and common sense. The questions and answers given went to the probability of S and C's account being true, not to prove the case.HELD: (1) It was common ground that for at least 40 years questions of the kind here impugned had widely, if not invariably, been permitted by judges. That was not impeachable in English law. (2) The question was admissible because it was relevant. If anything had been known to B why S and C had lied it would tend to undermine S and C's credibility. The fact that the prosecution expected a negative answer could not make the question inadmissible. If B had given a positive answer it would have been relevant to his credibility. The prosecution were entitled to seek to close, with finality, any avenue open to a defendant. (3) The question was not unfair and had no impact on the burden of proof. The question did not invite speculation, it sought to ascertain the state of B's knowledge. The court, like the trial judge, agreed with the way the matter was put in the New Zealand authority of R v T 1998 2 NZLR 257. The judge was therefore correct in ruling the question was permissible. (4) The judge had correctly directed the jury on how to approach B's evidence. There was no need for the judge to go any further.Appeal dismissed.

[2003] EWCA Crim 951