Practice and Procedure

R v H (2003)

PUBLISHED July 18, 2003

Where a defendant was on trial for sexual offences and the complainant had made previous allegations of rape, the defendant could not question the complainant about the previous allegations unless there was evidence to show the previous allegations were false.Appeal with leave of the single judge, against conviction for rape, indecent assault and indecency with a child. The defendant ('H') was sentenced to a total of four years' imprisonment. The victim ('V') was H's half-sister and the offences occurred at the family home between 1985 and 1991. The first indecent assault happened when V was eight years old and H was 16. He raped her twice when she was 10 or 11. He indecently assaulted V on two further occasions. Following a family wedding in 2001, where H got drunk and was dancing with his cousin and tried to kiss another girl, V decided she had to report what he had done to her because she was frightened he would do it again to someone else. She told her father who called the police. In interview and at trial, H denied any sexual contact with V and stated she had made it up because she was angry he had "chatted up" her friend at the wedding. In her witness statement, V gave details that she had been raped at age 14 when she was at a party and had got drunk. She stated that she passed out in the bathroom, when she came to a black man was lying on top of her, he smashed her head against the door and raped her anally. She hadn't told anyone because she shouldn't have been at the party. During the course of the trial a witness statement, from a friend of V, ('R'), was given to the defence, as unused material by the Crown. The statement gave details of a time when V told R that she had been raped at a railway station. An application was made to cross-examine V on the previous allegations of rape which, was refused. H appealed conviction on the ground that the judge was wrong to rule he could not cross-examine V on the allegation of rape against another person. H accepted that if the witness statement of V was the totality of the material, he could not have made the application. However, he should have been allowed to cross-examine on the basis of the other material from R, as V was talking about two occasions of the same event of rape in an inconsistent manner.HELD: (1) At the beginning of the appeal H produced two further references to the rape in unused material from the trial. Both of those statements were entirely consistent with V's description in her witness statement. On the face of it, the material H was seeking leave to cross-examine on was referring to two entirely different incidents and there was no inconsistency. (2) The broad purpose of s.41 Youth Justice and Criminal Evidence Act 1999 was to prevent complainants in sex cases from being asked about their sexual history unless there were very good reasons for doing so and when refusal might lead to an unsafe verdict. The previous allegations of rape would fall within the description in s.42(1)(c) of the Act. However, it has been established in R v RT : R v MH (2002) 1 ALL ER 683 and emphasised in R v (1) C (2) B (2003) EWCA Crim 29, that if a complainant had fabricated evidence of sexual allegations in the past, questioning was not prohibited as the questioning was not about sexual behaviour but about lies. (3) In the cases mentioned, there was material justifying the suggestion that previous complaints were false. In R v (1) RT (2) MH (supra) Keene LJ held that it was for the judge to rule that s.41 of the Act did not preclude questioning and there must be evidence that complaints made were untrue. (4) The case law showed that for H to keep outside s.41 of the Act, he had to produce evidence justifying cross examination. The material produced did not reach that point. H therefore fell within s.41 of the Act. The application to cross-examine V was no more than a fishing expedition to explore her sexual past in the hope that it would weigh against her in the eyes of the jury.Appeal dismissed