Practice and Procedure

R v SAMUEL H (2003)

PUBLISHED October 13, 2003

Where issues of recent complaint arose at trial and there was conflicting evidence as to when the complaint was made, the judge had to spell out the conflicting evidence and direct the jury to consider whether a recent complaint had in fact been made and whether the terms of the complaint were consistent with the evidence.Appeal with leave of the full court against conviction, on 20 November 2002 at Blackfriars Crown Court, for indecent assault on a female. The defendant ('H') was sentenced on 18 December 2002 to two years' imprisonment. V was the younger sister of H's partner ('C'). H and C had split up acrimoniously and the allegations were made in the background of an access dispute over their children. In March 2002, V gave a video interview stating that on 1 January 2001 she stayed with C and H sleeping in her niece's room on the floor. At about 3am she awoke and found H on the floor next to her with his hand in her knickers. She went into C's bed, but went back to her niece's room when H went to bed. H followed her and tried to kiss her cheek but she pushed him off. The matter was first reported to social services in November 2001, by V's mother to prevent H from having access to his children. When H was arrested he denied any indecent assault had taken place and claimed the allegation was a malicious conspiracy to prevent him from having access. At trial V's mother and C gave evidence that V made a complaint about the incident on New Years day. However, there was no mention of that recent complaint being made in V's video evidence of the police interview. In cross-examination, V accepted that she had not told her mother and sister until much later, after H and C had split up. The issue of recent complaint was raised by counsel before closing speeches and the judge gave a direction as to the relevance of recent complaint at law. H appealed conviction on the ground that the judge should have made it clear that there was no evidence of complaint until long after the dispute over access. .HELD: (1) Although the judge had given an adequate direction on the effect of recent complaint at law, he should have carefully spelt out the conflicting evidence. The judge should have referred to the two questions the jury should have considered: (a) whether in fact V made the recent complaint; and (b) whether its terms showed consistency with the evidence. (2) The judge's failure had serious implications particularly in light of the defence case that the allegations were fabricated to further the cause of restricted access and as a result the conviction was unsafe.Appeal allowed.