Practice and Procedure

R v TOBIN (2003)

PUBLISHED February 26, 2003

In sexual cases, prosecution evidence of a complainant's background and characteristics was not inevitably excluded. Where the credibility of a complainant and defendant was crucial, and very full evidence had been given about the character of the defendant, limited evidence about a complainant's characteristics and conduct confirmed a sense of fair play.Appeal against conviction after trial at Chester Crown Court on 16 August 2002 before HH Judge Dutton and a jury. The appellant ('T') was convicted of two counts of indecent assault and was sentenced to 12 months imprisonment on each count concurrent and required to comply with s.2 Sex Offenders Act 1997 for ten years. The complainant ('V') had been asked to leave a pub with her older female friend after they had drunk too much and V had been sick. T offered the two a lift home. The Crown's case was that T indecently assaulted V in the front of the car whilst her friend slept in the back. T dropped V off at her boyfriend's house where she arrived in tears and was again sick. At the time V was 16 years old and T was 36 years old. T said that V had voluntarily given him oral sex in payment for his petrol. V said she was forced to perform the act. V's mother gave evidence at trial about aspects of V's life concerning her background, her attitude to alcohol and her reaction to the incident. T submitted on appeal that the judge had been wrong to allow the prosecution to call evidence seeking to boost the credibility of V by reference to her good character.HELD: (1) The Court of Appeal held in R v Hamilton (1998) LTL 26/6/98 that evidence of good character proposed to be called by the prosecution to bolster the testimony of prosecution witnesses had no probative value regarding any issue in the case and was to be excluded on the ground of collaterality. It had not been suggested in the instant case that V had a general reputation for untruthfulness so as to permit her reputation to be reinstated by evidence that she was worthy of credit. In R v Amado-Taylor (2001) EWCA Crim 1898 it was accepted generally that evidence was not admissible simply to show that a prosecution witness had a good character, in the sense that he or she was generally a truthful person who should be believed. However, cases could arise where evidence of the victim's disposition or character could well be relevant. In the instant case there had been a stark conflict of evidence between the two versions. The dispute had not solely been about consent; rather T had alleged that V, under the influence of drink, had initiated the sexual conduct. In those circumstances the jury's view of the credibility of V and T was crucial. In sexual cases much depended on the balance of credibility between the parties and in those circumstances the difference between questions going to credit and questions going to the issue could be reduced to vanishing point (per R v Funderburk (1990) 1 WLR 587). The approach of the court in Amado-Taylor (supra) and Funderburk (supra) pointed clearly to the conclusion that in sexual cases, prosecution evidence of a complainant's background and characteristics was not inevitably excluded. In the instant case very full evidence had been given about T's character. The very limited evidence about V's characteristics and conduct confirmed a sense of fair play. On that basis the evidence had been admissible. (2) It could have been argued that the disputed evidence was irrelevant as V had been, by her own admission, affected by alcohol and was not behaving normally and much of the evidence was therefore unlikely to have assisted the prosecution's case. However, as the case had been argued, the prosecution had been entitled to adduce the evidence they had.Appeal dismissed.

[2002] EWCA Crim 190