Spooner v R

On 6 June 2002 the appellant was convicted at the Crown Court at Maidstone Before HH Judge Simpson and a jury of 12 counts of indecent assault, 1 count of buggery, 3 counts of rape and 1 count of gross indecency; these were specimen counts. He was sentenced to 12 years imprisonment. He appeals against conviction by leave of the Single Judge.

The sole ground on which the safety of the conviction is challenged relates to the admission of evidence of recent complaint; it was contended that the evidence of the complaint was not consistent with the evidence of the complainant and should not therefore have been admitted. It is possible to summarise the evidence quite briefly.

The appellant was the stepfather of S, the complainant who was born in June 1979. It was the prosecution case that the appellant began abusing her when she was 9 or 10 and this continued until she left home at the age of 19 in 1999. It was S’s evidence that she had been abused on an almost daily basis in the early hours of the morning. The abuse began with the appellant touching her indecently by putting his hand up her nightdress and lying on top of her and touching her. That form of abuse, S said, continued until she left home at the age of 19. From the age of 10 or 11, she was also subjected, on her evidence, on a regular basis to much more serious sexual abuse, including digital penetration of her vagina, and vaginal and anal sexual intercourse. The differing counts in the indictment reflected the differing sexual activity of which complaint was made. The defence was a denial of the accusations.

In the course of S’s evidence in chief, the Crown applied to the Judge to adduce the evidence of her complaint to a school friend C, to whom S said she had complained when she was 13 or 14. Objection was taken by the appellant to the admissibility of that evidence on the ground that the evidence set out in the statements of S and of C was not consistent with the evidence of the sexual conduct which S alleged the appellant had committed against her. The Judge did not deal with the issue of consistency in his ruling; the reasoning in the ruling dealt with an objection (which it was agreed before us had not been made on behalf of the appellant) that the complaint was not recent in the sense of being contemporaneous; if any such objection had been made, it clearly would have been bound to fail, as the complaint was said to have been made on the day or days following the abuse alleged. On the basis set out in his ruling, the Judge permitted the evidence to be given.

The evidence then given by S (which was largely in accordance with her statement) can be summarised. She said she had spoken to C at the age of about 13 or 14; she had little recollection, but thought she had only had one conversation. She had told C that the appellant had come in and had done things to her; she had told C what was happening. When asked to say what she had said to C, she answered that she had talked of the matters that had been spoken of during the trial. That was a clear reference not merely to the indecent assaults, but to the much more serious penetrative assaults.

The evidence of C was that at some time around the age of 12 or 14 she recalled that on 5 or 6 different occasions S had spoken to her. S had told her that “it happened last night” when asked to explain what “it” was, C’s evidence was that S had said that the appellant had touched her, had lain on top of her and put his hand up her nightdress.

When the learned Judge came to sum the case up to the jury, he directed them on the issue of recent complaint in the following terms:

“She did then tell her best friend at school, the witness [C], something (but not in much detail) about what she alleged the defendant was doing to her. She remembers one conversation, but cannot recall others. [C] has told you that there were several occasions when [S] told her that the defendant had done something to her the previous night.

It is important to realise and remember that [C] did not witness any such conduct by the defendant. She therefore is not a witness as to what happened to [S], but only as to what [S] reported to her. The effect of that is, therefore, limited to what lawyers call “consistency” of the complaints made by [S] and goes no further, apart from serving to establish, if you accept that evidence, that [S] did complain in some measure of the defendant’s alleged conduct when she was about 14. In other words, [S] did not wait until the time when the matter was reported to the police last year before speaking out.

The prosecution say that it would also serve to rebut the defence suggestion put to [S] in cross-examination that she made up this whole series of allegations some time after she left home at the age of 19 in order to gain some advantage in obtaining council accommodation. That suggestion, say the prosecution, is wholly inconsistent with [S] having complained in whatever limited form to [C] when she was about 14.

The reason why [C]’s evidence cannot provide support for any particular type of misconduct alleged by [S] against the defendant is of course because what [C] has told you comes itself from [S]. In other words, it is not independent support regarding any of these allegations because [C] was not there to see what if anything was happening.”

The Judge later in the summing up summarised the evidence of S, but did not refer again to the evidence of C.

In the course of the oral argument before us and in subsequent written submissions on the case law to which we will refer, the issues were refined to two:

It is important to point out that although the summing up refers to the evidence being used to rebut a suggestion of recent fabrication, no separate argument was addressed to us on that issue. This was because the evidence was admitted before the issue of fabrication was raised; it was the case for the appellant that if the evidence had not been admitted during examination in chief of the complainant, the allegation of fabrication made in cross-examination might not have been put.

The submissions made to us can be shortly stated:

The issue raised is one that turns on the general principles applicable to the admissibility of such evidence. It is therefore necessary first to examine the principles relevant to consistency laid down when the modern law was established.

Although the law relating to the admissibility of the evidence of recent complaint has a long history (clearly and helpfully summarised in Cross & Tapper on Evidence, 9^th edition, at page 273), the foundation of the modern law relevant to the issue before us was established in R v Lillyman [1896] 2 QBD 167. In that case, evidence of a contemporaneous complaint by the complainant to her employer was admitted against two objections – that such evidence ought not to be admitted and the evidence should be confined merely to the fact of the complaint. The evidence given of the complaint corresponded with the account given to the jury by the complainant. In giving the judgment of the Court of Crown Cases Reserved presided over by Lord Russell of Killowen CJ, Hawkins J dealt first with the objection in principle to the admission of such evidence:

“It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint not on oath nor made in the presence of the prisoner nor forming part of the res gestae can be admitted. It is clearly not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box, and as being inconsistent with her consent to that of which she complains.

In every one of the old textbooks, proof of complaint is treated as a most material element in the establishment of a charge of rape or other kindred charge. … It is too late, therefore now to make serious objection to the admissibility of evidence of the fact that a complaint was made, provided it was made as speedily after the acts complained of as could reasonably be expected.”

He then proceeded to consider whether it was only the fact of the complaint that should be admitted:

“We proceed to consider the second objection, which is that the evidence of complaint should be limited to the fact that a complaint was made without giving any particulars of it. No authority binding on us was cited during the argument, either in support of or against this objection. We must therefore determine the matter upon principle.”

After setting out the authorities, he concluded:

“After very careful consideration, we have arrived at the conclusion that we are bound by no authority to support the existing usage of limiting evidence of the complaint to the bare fact that a complaint was made, and that reason and good sense are against our so doing. The evidence is admissible on the ground that it was a complaint of that which is charged against the prisoner and can be legitimately used only for the purposes of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness-box negativing her consent, and affirming that the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her. The jury, and they only, are the persons to be satisfied whether the woman’s conduct was so consistent or not. Without proof of her condition, demeanour and verbal expressions, all of which are of vital importance in the consideration of that question, how is it possible for them satisfactorily to determine it? Is it to be left to the witness to whom the statement is made to determine and report to the jury whether what the woman said amounted to a real complaint? And are the jury bound to accept the witnesses’ interpretation of her words as binding upon them without having the whole statement before them, and without having the power to require it to be disclosed to them, even if they may feel it essential to enable them to form a reliable opinion? …

In reality, affirmative answers to such stereotyped questions as these “Did the prosecutrix make a complaint (a very leading question by the way) of something done to herself? Did she mention a name?” amount to nothing to which any weight ought to be attached; they tend to embarrass rather than to assist a thoughtful jury, for they are consistent either with there having been a complaint or no complaint of the prisoner’s conduct. To limit the evidence of complaint to such questions and answers is to ask the jury to draw important inferences from imperfect materials, perfect materials being at hand and in the cognizance of the witness in the box. In our opinion, nothing ought unnecessarily be left to speculation.”

The court went on to make it clear that a direction was to be given as to the purpose for which the evidence was admissible; in Lillyman, the decision was confined to the admissibility of such evidence where consent was in issue, but in R v Osborne [1905] 1 KB 551 and R v Camelleri [1922] 2 KB 122, the Court made it clear that the admissibility of such evidence was not confined to cases where consent was the issue. It may be helpful to refer to three short passages in the judgment of the Court of Crown Cases reserved in Osborne given by Ridley J:

“We think, however, if it were a question of the meaning of words, that the better construction of the judgment is that while the Court dealt with the charge in question, as involving in fact, though not in law, the question of consent on the part of the prosecutrix, yet the reasons given for admitting the complaint were two-first, that it was consistent with her story in the witness-box; and, secondly, that it was inconsistent with consent…..

“… it appears to us that, in accordance with principle, such complaints are admissible, not merely as negativing consent, but because they are consistent with the story of the prosecutrix. In all ordinary cases, indeed, the principle must be observed which rejects statements made by anyone in the prisoner's absence. Charges of this kind form an exceptional class, and in them such statements ought, under proper safeguards, to be admitted. Their consistency with the story told is, from the very nature of such cases, of special importance. Did the woman make a complaint at once? If so, that is consistent with her story. Did she not do so? That is inconsistent. And in either case the matter is important for the jury. (page 557-8)”

“It is only to cases of this kind that the authorities on which our judgment rests apply; and our judgment also is to them restricted. It applies only where there is a complaint not elicited by questions of a leading and inducing or intimidating character, and only when-it is made at the first opportunity after the offence which reasonably offers itself. Within such bounds, we think the evidence should be put before the jury, the judge being careful to inform the jury that the statement is not evidence of the facts complained of, and must not be regarded by them, if believed, as other than corroborative of the complainant's credibility, and, when consent is in issue, of the absence of consent. (page 561)”

It is, in our view, clear from these two authorities that the principle on which the evidence is admitted is to support and enhance the credibility of the complainant; the jury can, in making their assessment of the truth of the evidence given by the complainant in the witness box, take into account evidence as to consistency between that evidence and evidence of her contemporaneous conduct and her contemporaneous complaint; it can be a powerful aid to the credit of the complainant. (See also the judgment of Sir Garfield Barwick CJ in Kilby v The Queen (1973) CLR 460 at paragraphs 14-31 and the opinion of the Privy Council given by Lord Morris of Borth-yGest in Sparks v The Queen [1964] A.C.964 at 979). This underlying principle remains as relevant now as it was at the time Lillyman and Osborne were decided.

It follows therefore that, if the evidence of the complaint is wholly inconsistent with the evidence given in the witness box by the complainant, the prosecution cannot adduce it under this principle; it would be immaterial and irrelevant to the purpose for which such evidence is admitted, as it would not support or enhance the credit of the complainant. That is evident from the decision of this Court in R v Wright and Ormerod (1987) 90 Cr App 91. The defendants in that case were charged with indecent assault on a child of 5. The child gave evidence at the trial; she said during that evidence that the defendants had hurt her in the back and said naughty things to her. The Judge also admitted evidence from the child’s mother of the complaint the child had made to the mother. The essence of that evidence was to the effect that the defendants had lifted up her dress and pulled her knickers down and touched her nipples. In giving the judgment of the Court, Ognall J said:

“The first and primarily important point to note arising from the terms of that complaint is that none of that allegation formed any part of the child’s evidence before the jury. We draw attention to this as the starting-point, because it cannot be doubted as a matter of long-established law that the whole and exclusive rationale for the introduction of a recent complaint in cases of alleged sexual crimes lies in its utility to the jury in determining whether or not the complainant has been consistent in the accounts she has given.

For this purpose we refer to and agree with the passage set out in Archbold (42^nd ed.) at para.4-308, p.403, which reads: “The mere complaint is no evidence of the facts complained of, and its admissibility depends on proof of the facts by sworn or other legalised testimony.”(My emphasis.) It must, in our view, follow that if the terms of the complaint are not ostensibly consistent with the terms of the testimony, the introduction of the complaint has no legitimate purpose within the context of the trial. It is for this reason that the courts have treated the matter in the past as is summarised in para. 4-310 of Archbold (42^nd ed.), which summary in that paragraph we respectfully agree with and adopt.

It may be that if the learned Judge had confined the admitted evidence to the fact of a complaint, without allowing in its detail, other considerations would have applied. But, of course, the consequences of so doing might have been to compel the defendants to adduce evidence of its terms in an effort to demonstrate inconsistency. The prejudice attendant thereon would no doubt be the subject of complaint to this Court, and we express no concluded view on it if only for the reason that it did not occur in this case. The fact is that not merely a complaint but the terms of the complaint were admitted in evidence.”

The Court does not appear to have been referred to Lillyman; we therefore treat the breadth of the observations of Ognall J with a degree of caution. This is particularly important in respect of his observations about the admissibility of the fact of a complaint, as the issue as to the admissibility of the fact of a complaint is an important part of the rationale for the principle as established by Lillyman and Osborne.

The question of the admissibility of the fact of the complaint had earlier been considered in R v Wallwork (1958) 42 Cr App Rep 153 in a judgment of this Court given by Lord Goddard LCJ. He suggested that there might in the circumstances of that case have been no objection to the fact of the making of the complaint, as opposed to its terms, being admissible. In that case, the defendant was charged with the incest of his 5 year old daughter; she was called into the witness box, but was unable to give evidence. Her grandmother was called and gave evidence of the complaint made to her by the girl. The court held that the terms of the complaint ought not to have been admitted. Lord Goddard however observed at page 162:

“ There would have been no objection to the grandmother saying: “The little girl made a complaint to me” and she could have been asked: “In consequence of that complaint what did you do?” – and the answer would have been “I took her to the doctor and later to the police.” One realises that, although the terms of the child’s statement must not be given, any jury could see at once that as a consequence of the complaint the grandmother took the child to the doctor and the police and that the terms of the complaint would mention her father. So there is really a certain artificiality about this rule that, although the statement which a girl or woman makes in these circumstances is not evidence of the facts complained of, at any rate it shows the jury at the time whether the name of the prisoner is mentioned or is not mentioned, for what happens is that the police go to a particular man and that is because the girl or woman has mentioned the name. Nevertheless, the evidence ought not to have been given and the learned judge ought to have told the jury to disregard it.”

In a trenchant note in (1958) 74 Law Quarterly Review 352, Professor Sir Rupert Cross commented:

“Nevertheless it is to be hoped that the passage from the judgment which has just been quoted will be relegated to the realm of doubtful dicta, for no reference was made to the observations of Hawkins in Lillyman which seem to have been sound in principle and according to which the procedure contemplated by Lord Goddard would have been inadmissible”

In White v R [1998] UKPC 38, [1999] AC 210 (on an appeal from Jamaica), Lord Hoffman, giving the judgment of the Board, after referring to Lillyman, observed at paragraph 21:

“The apparent approval of this kind of device by Lord Goddard CJ in R v Wallwork (1958) 42 Cr. App. R. 153, 162 was convincingly criticised by Sir Rupert Cross: “Complaints in Sexual Offences” 1958 74 L.Q.R. 352-355.

“While therefore their Lordships do not go so far as to say that the evidence of the fact that statements were made was inadmissible, they consider that the admission of that evidence made it necessary for the judge to give the jury a careful direction about the limited value which could be attached to it.”

In the light of the powerful reasoning in Lillyman and the observations of Lord Hoffman in White, it seems to us that the better view may be that evidence of the mere fact of complaint may only ever be admissible in very unusual circumstances and only then if a very careful direction is given. Although it is not necessary for us to decide the point, it is of importance to note that, although the fact of complaint would be relevant to support the credit of the complainant, the reasoning against admissibility has a powerful and rational basis. That is because admitting only evidence of the fact of the complaint would be to deny to a jury direct evidence as to the circumstances and nature of the contemporaneous complaint and to invite speculation by them on that very matter. As the purpose of the introduction of such evidence is to support the credit of the complainant, they would be denied the means of making a proper assessment of that supporting contemporaneous evidence and hence of the overall credit of the complainant and be subject to the real risk of speculation in a way which might well be very unfair to the defendant.

In this jurisdiction, that is the limit of the relevant authority; there is no authority (to which our attention was drawn) on the question of the admissibility of evidence which is capable only of being consistent with part of the evidence given by the complainant or consistent only to a limited degree; we did not find the decision in R v Askew [1981] Crim LR 398 (Transcript 23 February 1981) of any assistance on this point.

However, the Queensland Court of Criminal Appeal considered in R v Braye-Jones [1966] Qd R 295 the admissibility of evidence of recent complaint where the evidence of the complainant and the evidence of the contemporaneous complaint differed. It was argued that evidence of the contemporaneous complaint should not have been given as it was inconsistent with the evidence of the complainant. This was rejected by Lucas J (with whom the other judges agreed) in the following terms:

“Clearly enough, evidence of statements made by the prosecutrix which did not bear any resemblance at all to her sworn evidence would not be admissible, for such evidence would be irrelevant. In my opinion, however the matter is one of degree, and if the substance of the complaint can be identified as relating to the story told by the prosecutrix in evidence and if it is such that a jury can reasonably regard it as constituting a complaint of a matter of a sexual nature, then I think that inconsistency as to detail is a matter for the jury to consider in their assessment of the credibility of the prosecutrix”

After referring to the passage in Lillyman to which we have referred at paragraph 15, Lucas J continued:

“The minds of their lordships were not of course directed to the question now under discussion, but it seems to me that the passage is useful in this context, for in it their lordships seem to assume that it is the jury who will have the task of considering any inconsistency between the terms of the complaint and the evidence of the prosecutrix. Indeed in the summing up in this case, the learned judge read the whole of this passage to the jury, and this was made the subject of a somewhat faint complaint by counsel for the appellant. But it seems to me that the passage would have been helpful to the jury as emphasising that it was for them to consider the inconsistencies of the complaint and the girl’s evidence to which inconsistencies the learned judge directed their attention.

In any event, from a practical point of view, it would, as seems to me, be unreal to expect unanimity of expression in the recounting of incidents by two women who were evidently so agitated when the events of which they were speaking took place. …. If the girl’s complaint was so different from her evidence that the two could not be identified as relating to the same occasion, evidence of it would be inadmissible because irrelevant, but that does not seem to be the situation here. Clearly enough, what she said here by way of complaint could be related only to the experience which she had just undergone and of which she gave evidence and in these circumstances, it seems to me that the inconsistencies were a matter for the jury to consider

…

The object of admitting evidence of fresh complaint is not to demonstrate that what the prosecutrix says she said by way of complaint is consistent with the evidence of the terms of the complaint given by the person to whom it was made; it is to test the consistency of the story told by the prosecutrix in the witness box; all that is required, therefore, is for the prosecutrix to go into the witness box and tell her story. If she does, evidence of a complaint made by her can be given although she cannot herself remember what she said; provided, of course, as I have already said, that the terms of her complaint are not so completely inconsistent with the story she tells in the witness box as to be incapable of reference to the same series of events”

We find the approach and reasoning of the Queensland Court very helpful. There is also a decision of the New Zealand Court of Appeal to similar effect – R v Nazif [1987] 2 NZLR 122. The complainant gave evidence of an indecent assault, whereas the evidence given of the complaint was of an assault; Somers J dealt with the issue (which was one among several) very shortly:

“The third question arises from the fact that the witness of the complaint, Miss Reidy, gave no evidence that the prosecutrix had told her that she had been indecently assaulted; merely that she had been assaulted. It was submitted that evidence by way of a complaint was not admissible unless the complaint made referred in some way to its indecent character.

The submission has little logic to support it. The purpose of the admission of evidence of complaint being to show consistency of the conduct of the prosecutrix with the evidence she has given as to what occurred; a simple complaint of assault made by her made proximately to the event must surely be capable of evidencing consistency. Whether it does so in fact will be a matter for the jury.”

The case law to which we have referred was developed in relation to cases where the issue at the trial related to event or events which had occurred within a relatively short time before the trial. The issue before us has arisen in a case where there were allegations of sexual abuse extending over many years; the principal evidence was that of the complainant and the appellant. A powerful argument could be made that the development of the law may need reconsideration in the light of the importance of the overall history of complaints by a complainant (whether recent or not, or whether consistent or not) to the determination of the truth of the allegations. However although that may be an argument that has to be considered by others ( possibly in relation to the scope of the common law rules in relation to the provisions of S.120 of the Criminal Justice Act 2003), it is not necessary for us to consider it in this case, because in our judgment, the evidence in this case was admissible, applying the established principles, for the two distinct reasons set out in paragraphs 28- 32 and paragraph 33 below.

First, and this is the basis on which we reach our decision, even if the less serious indecent assaults had not continued and the complainant’s evidence at trial related solely, at the time of the contemporaneous complaint, to digital penetration and rape by the appellant, the evidence of the contemporaneous complaint about the less serious indecent assaults would have been admissible. The question of admissibility, in our view, depends, applying the established principles, on whether such evidence is sufficiently consistent that it could, depending on the view taken by the jury of the evidence, support or enhance the credibility of the complainant. In our judgment, on the facts of this case the evidence of C was capable of supporting the credibility of S’s evidence given in the witness box in relation to the more serious sexual conduct of digital penetration and rape; in our view it was irrelevant that these were events that had occurred years before; the complaint was contemporaneous to the evidence of the complainant as to the time of the conduct alleged against the appellant.

If the evidence is admissible (as it was in this case), then it is for the jury, properly directed, to consider the whole of the circumstances relating to the contemporaneous complaint in determining whether the evidence of the complaint, on their view of the witness giving that evidence, supports the complainant’s evidence and what weight they consider should be attached to it in their assessment of the credit of the complainant.

The decision in each case as to whether it is sufficiently consistent for it to be admissible must depend on the facts. It is not in our judgment necessary that the complaint discloses the ingredients of the offence; it will, however, usually be necessary that the complaint discloses evidence of material and relevant unlawful sexual conduct on the part of the defendant which could support the credibility of the complainant. It will not, therefore, usually be necessary that the complaint describes the full extent of the unlawful sexual conduct alleged by the complainant in the witness box, provided it is capable of supporting the credibility of the complainant’s evidence given at the trial.

Differences may be accounted for by a variety of matters, but it is for the jury to assess these. For example, in cases of alleged abuse (such as this) by a stepfather or other family member, it would be for the jury to consider whether the difference arises because, as is known to happen on some occasions, the complainant cannot bring herself to disclose the full extent of the conduct alleged against the defendant at the time of the contemporaneous complaint.

For the reasons we have given at paragraph 19, there are obvious dangers in merely informing the jury of the fact of a complaint, supportive though that is of the credibility of the complainant; we have there expressed our doubts as to whether evidence of the fact of complaint can ever be admissible save in unusual circumstances, as not only will such limited evidence make it impossible to assess whether it supports the complainant’s evidence, but it may well result in unfairness of the defendant. It is, however, a matter of common experience that the terms of the evidence of a complainant given at trial and the evidence of the complaint may differ, but it would be contrary to good sense to exclude the latter if it is capable of supporting the credibility of the complainant. Provided that the evidence as to the terms of the complaint is sufficiently consistent that it can, depending on the view the jury takes, support the credibility of the complainant, it is, in our view, both fair to the defendant and in accordance with the long established principles to permit such evidence to be given and to leave it to the jury to assess its weight. We accept that such evidence may be prejudicial, but, as we have said, it can be highly probative of the veracity of the complainant in putting before the jury what complaint was being made immediately after the occurrence of the conduct complained of. It is for the jury, after an appropriate direction from the judge, to weigh up the evidence and to determine whether the circumstances in which the complaint was made and its terms support the veracity of the complainant. Reason and good sense and principle are against us excluding what may be very important evidence from the jury, just as reason, good sense and principle laid the foundation in 1896 of the modern law relating to the admissibility of the terms of the complaint.

On the facts of this particular case, there was a second basis on which the evidence of complaint could have been admitted, though we do not base our decision on these grounds; the evidence of C was consistent with the complainant’s evidence that the defendant had continued to commit the less serious indecent assaults upon her even after the more serious penetrative conduct had commenced.

It is, as we have observed in paragraph 32, important for the judge to direct the jury fully on the use the jury may make of the complaint; R v Islam [1999] 1 Cr App R 22. The Judicial Studies Board have provided a specimen direction. In cases where there is an obvious inconsistency, it will be very important for the judge to make clear to the jury the extent and significance of the inconsistency, as the trial judge did in Braye-Jones. He should also draw to the jury’s attention any reason given for the inconsistency and tell them that it is for them to take all these matters into account in deciding whether the complainant was telling the truth.

For those reasons we therefore consider that the evidence was admissible and turn to consider the alternative argument made by the appellant that the direction given by the judge was inadequate in the light of the judge’s duty to direct the jury in the terms we have outlined.

In considering the directions given by the Judge, it must be borne in mind that he was not given the benefit of the detailed submissions made to us. This may explain why the Judge’s single observation in relation to the inconsistency was that the evidence of C served to establish that S did complain “ in some measure”. Moreover, the Judge should, in any event, have summarised the evidence of C and contrasted it with that of S. He did not do so and pointed to none of the inconsistencies. In the circumstances of this case where the evidence of C was of real significance, the Judge clearly should have drawn to the jury the specific differences between the evidence of S and that of C and made clear to them the limited consistency between the evidence of S as to what had happened and C’s evidence as to the complaint made to her. The direction given by the judge was plainly so inadequate that it amounted to a material misdirection to the jury.

In the light of our conclusions on the direction given by the Judge, we have to consider the overall safety of the conviction. It was submitted on behalf of the appellant that in the light of an overall assessment of the evidence, the evidence of contemporaneous complaint by C must have played an important part in the jury’s assessment of the respective credibility of S and the defendant. In our view, on the evidence, in this case, that must be so. It must be remembered, for example, that it was S’s evidence that the conduct complained of took place very frequently for much of the period in a room which she shared with her brother; he was said to be unwilling to sleep with the lights out and her evidence was that she cried every time he was assaulted.

Taking into account the very limited direction given by the judge and the importance of drawing to the jury’s attention the inconsistencies, on the facts of this case, between the account given by S and the evidence by C of the complaint made by her, we cannot conclude that the conviction was safe. We therefore allow the appellant’s appeal against conviction. We will consider the Crown’s application for a re-trial when the judgment is handed down.