Practice and Procedure


PUBLISHED November 18, 2003

The judge had erred in allowing the prosecution to re-examine the mother of a complainant in order to establish the consistency of the complaint with the complainant's testimony, but that error did not render the subsequent convictions for indecent assault unsafe. However, the sentences imposed had been manifestly excessive.Appeal against conviction and sentence on four counts of indecent assault. On 28 February 2003, the appellant ('H') was convicted and sentenced to a total of three years' imprisonment, reflecting sentences of: (i) two years' imprisonment for each of three counts ('Counts 1 to 3') of indecent assault on an eleven-year-old girl ('T') to run concurrently; and (ii) one year imprisonment for one count ('Count 4') of indecent assault of the girl's mother ('P') to run consecutively to the two-year sentence for Counts 1 to 3. As a result of P's cross-examination, evidence was put before the jury that when T complained to P, T made statements as to the alleged assaults that were inconsistent with T's evidence to the jury. The judge subsequently ruled that prosecuting counsel was entitled to re-examine P in order to demonstrate the degree of consistency, as well as the inconsistencies, in T's complaint to P. H appealed against conviction on grounds that: (a) the judge erred in allowing P's re-examination; (b) the judge erred in not applying the law concerning previous consistent statements as laid down in R v Beattie (1989) 89 CAR 302; (c) the convictions on Counts 1 to 3 were unsafe given that the judge allowed the introduction of a previous consistent statement to bolster T's credibility, on which the prosecution's case relied entirely; and (d) P's evidence of T's complaint supported the prosecution's case in respect of Count 4 thereby rendering that conviction unsafe. H further submitted that the sentences imposed were manifestly excessive.HELD: (1) None of the three exceptions identified in Beattie (supra) applied. This was not a case where an allegation of recent fabrication had been made. In seeking to adduce evidence of the precise terms of T's complaint to P through re-examination, prosecuting counsel was not seeking to correct an evidential position that would otherwise have been erroneous or misleading, but to establish the consistency of T's complaint with her testimony in a manner prohibited by the general rule regarding previous consistent statements and not within a recognised exception. Accordingly, the judge had been in error. (2) The convictions were safe despite the judge's erroneous ruling allowing P's re-examination. The judge had directed the jury emphatically to the effect that the complaint made was not evidence of what actually happened and he had highlighted the inconsistencies relied on by the defence. He had also directed the jury that the charges had to be considered separately. It was plain from the conviction on Count 4 that the jury accepted P's evidence as to the indecent assault on her, rejecting the suggestion that she was complaining in order to bolster T's complaints. The appeal against conviction was therefore dismissed. (3) In light of previous decisions of the Court of Appeal, it was clear that the sentences imposed by the judge had been manifestly excessive. Those sentences were quashed and substituted with sentences of 15 months for each of Counts 1 to 3 to run concurrently, and three months' imprisonment for Count 4 to run consecutively to the sentences for Counts 1 to 3.Appeal allowed in part.

[2003] EWCA Crim 3214