Ian O, R. v

MR JUSTICE MCCOMBE: On 26th May 2005 in the Crown Court at Liverpool, before His Honour Judge Swift and a jury, the present appellant was convicted of eleven offences involving allegations of sexual abuse against his stepdaughter, whom we shall call M.

The offences consisted of four counts of indecent assault, one of sexual intercourse with a girl under 13, one of attempted buggery and four counts of rape. On the same day he was sentenced by the learned judge to 11 years' imprisonment in total. The breakdown of those sentences is not relevant to the present appeal, which is an appeal against conviction brought with the leave of the Single Judge.

The background to the matter was as follows. M was the middle of three children born to her mother from a marriage that had broken down before the material events. M was born on 2nd October 1978. She has two brothers, one older, one younger. In 1982, when M was 4, her mother met the appellant and he and his mother, her two brothers and M thereafter lived together as a family.

It was the prosecution case that the appellant had committed a number of offences of sexual abuse against M, between October 1987 and October 1995. The indictment contained specimen counts. The abuse, it was said, started by the appellant touching the complainant's genitals. As he became, as the prosecution alleged, more confident and no complaint was made the abuse increased in seriousness. The appellant started by putting his hands into the complainant's underwear and feeling her private parts. The conduct continued, it was said, in the same way for the next 2 years. The offences occurred, on the prosecution case, when the complainant, M, was aged between 9 and 11 years.

The appellant then moved on, so it was alleged, to regular sexual intercourse with the complainant when she was 12. After the complainant reached puberty, at or about 13 years, there was an attempt to commit buggery, which led to the one charge of that offence to which we have referred. From the ages 13 to 17, it was said that there had been regular sexual intercourse, to which M did not consent, which gave rise to the charges of rape.

The Crown also relied on the evidence of complaint to friends of M and to one of her brothers. This last complaint forms the subject of the present appeal.

It was the defence case that the events described by the complainant had not happened. It was urged that there was no supporting evidence. The complainant's evidence was said to be vague and lacking in detail. The complaint's evidence was explained in the defence case as deriving from times when the complainant was having family problems and there was difficulty at home. Equally, the complaints were said to be vague and inconsistent with the complainant's evidence to the jury. The complainant's behaviour, it was said, particularly after 1996, was inconsistent with her allegation, in so far as M continued to live an apparently normal family life with the family, even after some complaint had been made.

The evidence as to the complainant's emerging allegations developed from a time when she was 17. After an argument with her mother, she left the family home to stay for a short time with a long-standing school friend, L, and her mother. After a period with these friends (some three days or so) L's mother sought to persuade M to return home. She said that she could not go back as her stepfather had been abusing her since she was a child. No detail was given further than that.

L's evidence was that when M was being told by L's mother she could not continue to stay with them, she became tearful; she stated that the appellant had been coming into her bed at night. L herself then asked M: "and he raped you". M answered or gave reason to think that the answer was in the affirmative. Again, it was urged that no detail was given.

L's mother said that while M stayed with her and her daughter for three days, M had told her that her stepfather was making advances to her.

The Crown applied, at the start of the trial, to adduce this evidence from L and her mother pursuant to provisions of Chapter 2 of the Criminal Justice Act 2003 relating to hearsay evidence. That application was considered along with the more firmly opposed application to adduce evidence of the second complaint which is the subject of this appeal.

The ground of appeal now raised relates to the judge's decision to admit in evidence a further complaint, made by M, to her elder brother, S, some months after the complaint to her two friends. The factual background has been helpfully amplified to us this morning by Mr Bagley, who appears for the appellant. Miss Whyte, for the Crown, does not dissent from the amplification so given. It appears that the complaint to L and her mother was made after the complainant had become 17 years old in October 1995. The second complaint had been made at some time in 1996. Looking at the timing from the complainant's statement, it seems a gap of perhaps 4 months elapsed between the initial complaint to L and her mother and the complaint to M's brother.

The evidence that was admitted from the brother, S, was to this effect. He said that he remembered a particular evening when they had been in a public house and M had become upset. He could not precisely remember how the argument had occurred. The complainant had told him that the appellant had abused her since she was 8 or 9 years old. She was distraught and he was shocked and angry with her. She asked him not to confront the appellant or say anything to anyone about it. She was scared. She said that she was concerned the family would split up if the matter was revealed. He said he then carried on as if he knew nothing, effectively keeping up the pretence.

The learned judge allowed the Crown to admit the evidence of that second complaint. It is submitted by Mr Bagley, in his helpful written and oral argument to us today that he was wrong so to do. The learned judge declined to allow the evidence of one further complaint, made or less contemporaneously with that made to S, to another man called Davidson.

The Crown's application in each case was made pursuant to the hearsay provisions introduced by the Criminal Justice Act 2003.

The learned judge relied on section 120 of the Act. In particular, on subsections (4) to (7) of that section. He was also invited to bear in mind subsection (2) section 120 and section 114. However, neither of those last two provisions were at the forefront of the learned judge's decision and it seems to us we need say little more about them on this appeal. So far as material, section 120 of the 2003 Act provides as follows:

Clearly the provisions of subsections (4) and (7) of the 2003 Act cover an area very similar to that dealt with by the old common law rules relating to "recent complaint" in sexual cases. The new provisions are not limited to sexual cases. The learned judge proceeded expressly on the basis that the common law rules had gone and that there was no longer any question of considering whether a complaint had been made at the first reasonable opportunity as the old law required. The statutory test in section 120(4) is differently expressed, as indeed it is, in subsection (7).

There was much debate in the written arguments before us as to whether technically the old rules as to recent complaint had been abolished by the 2003 Act. That seems to us, in spite of the erudition of those arguments to be largely an arid discussion. The application to admit the evidence was made under the new Act. The learned judge, in our view, correctly concentrated on deciding whether the test of admissibility provided by that Act had been satisfied.

In dealing with the complaints to L and to her mother the learned judge decided this and we quote from page 8F of the transcript of his ruling as follows:

The learned judge then proceeded to consider the proposed evidence of the complaint to S, which, as he put it, posed greater difficulty. He considered the point as to whether this complaint was made, as the statute requires "as soon as could reasonably be expected" after the alleged conduct. The judge's decision was this, at page 9G of the transcript as follows:

The learned judge considered two further points made by the defence. The first was whether section 120 of the 2003 Act allows the admission of more than one hearsay statement as to a complaint by the alleged victim of crime. He held it did. The contrary was argued in written argument but has not been pursued before us this morning. We can say quite shortly that we agree with the learned judge's conclusion on that point and there is no need to say any more about it. There is no such limitation in the Act and we see no reason to import such limitation.

The judge also considered the relevance of the second complaint and whether there was any evidential weight in a repeated complaint over and above the first that had been made. His conclusion in that regard was this:

We see the force of the learned judge's conclusion in this respect. It has to be remembered that a statement admitted under the new statutory provisions is admissible to prove the truth of the matter stated and not merely to demonstrate consistency of the complainant's account as was the case under the old law. There is obviously a need in fairness to restrict evidence of "complaint upon complaint" which may merely be self-serving. But broadly for the reasons given by Judge Swift, we agree that the evidence in this case had a relevance over and above that of the complaint to L and her mother some months earlier.

The appellant sought to argue that the new hearsay provision as to complaints merely codify the old law of recent complaint and should be regarded importing the restrictions inherent in some regards to that law. Again we disagree. The statutory provisions are freestanding and provide their own criteria. In our view, the learned judge applied those criteria correctly for the reasons that he gave. In our view, in the context of this case, the timing of the second complaint was, in all the circumstances, made "as soon as might as soon as reasonably could be expected" after the alleged conduct, in the words of paragraph (d) of section 120(7).

In the circumstances, we do not consider it is necessary to address the additional point made by Miss Whyte for the Crown that the statement, was inevitably going to be admitted under section 120(2) section 120, namely as rebuttal of an allegation of recent fabrication.

For the reasons given by the learned judge, which we have sought to amplify in this judgment, we consider that this appeal, ably argued as it has been by Mr Bagley, must fail. The appeal is accordingly dismissed.