R v Salil Korambayil

This is an application for leave to appeal against conviction by the appellant, leave to appeal having been refused by the single judge, together with two other applications. On 17 July 2025 the Full Court, having been persuaded that the grounds were reasonably arguable, listed the matter for what is called a “rolled up” hearing, namely that we would consider whether to grant leave with the appeal to be heard on the same occasion. The two other applications, namely one for an extension of time of 22 days to seek leave to appeal, and an application under section 23 of the Criminal Appeal Act 1968 to admit fresh evidence, were also referred to us to be dealt with at the same time. We shall refer to the applicant/appellant as the appellant throughout for convenience. As stated at the heading of this judgment, the provisions of the Sexual Offences (Amendment) Act 1992 apply to this case and these offences. This means that reporting restrictions apply to this judgment. Under those statutory provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the 1992 Act.

We received the fresh evidence de bene esse. This comprised some written statements and material from three witnesses, and two witnesses who attended before us in person, were sworn and gave their evidence orally, also being cross-examined by Ms Pitts for the respondent. The calling of these two witnesses in person was something that was approved by the Full Court on 17 July 2025, the same occasion as the rolled up hearing was ordered. We deal with the fresh evidence further below. Due to the statutory reporting restrictions and the relationships between A and some of the witnesses providing the fresh evidence, we have anonymised some of the names due to the risk of what is called “jigsaw identification”. At the conclusion of the hearing on 12 September 2025 we reserved judgment.

Further, as a result of our judgment in this case and subject to submissions which we deal with at the end, there will be a re-trial. This judgment is therefore subject to an order made pursuant to s.4(2) of the Contempt of Court Act 1981 postponing publication of any report of these proceedings (including for the avoidance of doubt this judgment) until the conclusion of the re-trial in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings.

On 7 November 2023 in the Crown Court at Truro after a trial before His Honour Judge Carr, the appellant was convicted of three separate counts of rape, contrary to section 1(1) of the Sexual Offences Act 2003. On 15 December 2023 before the same judge, he was sentenced to a total of 14 years’ imprisonment and the necessary notification requirement orders were also imposed. The total period was made up of sentences of 7 years’ imprisonment on all three counts. The sentences for the two offences against the second complainant were ordered to run concurrently with one another, and consecutive to the sentence in respect of the offending against the first complainant.

The offending the subject of the three counts was against two separate female complainants, to whom we shall refer as A and B. A and B did not know one another and were unconnected. Count 1 was an allegation of vaginal rape of A. Count 2 related to an allegation of vaginal rape against B; count 3 related to an allegation of oral rape against B. We shall keep our recitation of the facts to a reasonable minimum. The issues on each of the three counts in the indictment was consent.

The incident in relation to complainant A occurred on 23 August 2020 and unfolded as follows. The appellant is a doctor, was born in India and had moved to the UK in 2016 for work purposes, obtaining employment as a surgeon in the NHS. The appellant and A had met and communicated using Facebook Messenger and had met on a single occasion in June 2020 and had consensual intercourse. Thereafter a period passed and A’s evidence was that she was not particularly interested in any further contact; she regretted the sexual encounter. After contact was resumed, eventually the appellant attended A’s flat one evening, A’s explanation for this being that she was pressured into this by the appellant. What happened whilst he was in the flat was contentious, but all agreed that sexual intercourse had taken place between the appellant and A. The appellant’s explanation was that this sexual intercourse was consensual; A’s evidence was that it was not, and that he had raped her. A also gave evidence that he had choked her at one point. There are other details which it is not necessary to recite.

The complainant A told her friend and ex-partner what had happened on the same day. She was clear that she did not want to involve the police. On 26 August 2020, A made a post on Facebook saying “Girls if someone called Salil a surgeon at NDDH, tried to add you as a friend pleas don’t, bad new.” Another person saw that post and contacted the complainant. It was that person who made the initial report to the police. A said that she was angry, and felt that her autonomy had been taken away. Although she gave an initial statement at that time to the police, she said that was not prepared to go through the interview procedure with them. The appellant was initially interviewed on suspicion of rape of A on 10 September 2020. On 24 October 2020 A informed the police that she would not conduct a pre-recorded interview nor would she support a prosecution, and the appellant was subsequently informed that the police would take no further action at that time in relation to the allegation. In her initial statement to the police, A disclosed that she had been raped before. This is relevant given the basis of the grounds of appeal below.

The incident in relation to complainant B unfolded in the following way. The appellant and B were in contact for some time over social media using Instagram and WhatsApp, having initially met when he viewed a room she intended to rent out. Her evidence was that although they were in touch over time, she was not interested in a sexual relationship with him. However, she said that he constantly pressured her into allowing him to come around to her flat. After a period of time, on the evening of 28 March 2021 she relented and allowed him to visit her. He arrived with some food, which they both consumed. Her account of what then occurred was detailed and she found herself having her underwear removed in her bedroom, where he had sex with her by penetrating both her mouth, and then her vagina, with his penis. B also gave evidence that he had choked her at one point.

B thought that she had blacked out. She was so frightened that she froze and was unable to move, but she did remember saying ‘leave me alone’ at one point. Her next memory was the appellant saying that he needed to go to work and leaving in the morning. The complainant was clear that she would not have consented to sex with him, and she did not say or do anything that had encouraged him. She was clear that she had been raped. She messaged a friend to whom we shall refer as Z shortly afterwards, but B did not feel that Z was particularly supportive. B self-referred to the local sexual assault unit on 6 April 2021 and then reported the matter to the police by telephone the following day, stating that the appellant had raped her. Part of her decision to report what had occurred to the police was caused by the fact that the appellant had called her on her personal telephone number which B knew she had not given him. She suspected that he had accessed her personal records at the hospital where he worked as a doctor. This suspicion turned out to be well-founded; he had indeed done this, and these Data Protection Act offences were subject to separate proceedings against him.

Following B’s report to the police the appellant was arrested the following day. B completed her recorded interview on 15 April 2021. Given the similarities between the two incidents, A was then re-contacted by the police on 30 June 2021 and she completed a recorded interview on 12 August 2021. The appellant was then arrested and re-interviewed in relation to both allegations on 7 April 2022. He was adamant that the sexual activity with both of the complainants was entirely consensual and that they were both active and willing participants.

He gave evidence at the trial in which he maintained that both the complainants had consented to the sexual activity which took place.

In the initial statement that A gave to the police, she disclosed that she had been previously raped in 2019. This was recorded in the police incident log, although the name of the alleged rapist was not included in the disclosed material provided to the appellant’s defence. There was also a separate police report recorded in the incident log of her having reported on another occasion some years earlier in 2012 that she had been raped by a named individual, whom we shall call M, who was her landlord at the time. She had reported this to the police in 2012 within a number of hours of the incident occurring. On that occasion, although she wished to support the prosecution of M, following M’s arrest and interview, a decision was taken not to prosecute him. As part of the police investigation into that matter in 2012, A had been asked for further information and had said that there were three other women who the police should speak to about potential sexual assaults by M. Those three women did not support this account and had each denied it. When interviewed, M stated (and we quote this from the incident log):

“[M] was interviewed today, during which he admitted having an extramarital relationship with [A] until the beginning of December and also “employing” her in exchange for rent, until the middle of December”.

So far as B is concerned, facts at the trial were agreed in the usual way, and included two as Agreed Facts 24 and 25, both of which related to the second complainant B. They were:

“24.

“Matthew” attended Falmouth Police Station on 21^st October 2023 having received the message from [B] on 20 October 2023. He told the police that as a result of receiving the message that he was concerned that a report of rape may be made by [B] with him as the suspect.

25.

A Police Sergeant spoke to [B] and police records state [B] “stated that she did not see what happened as an offence but wanted to scare [Matthew] to be more thoughtful when having sex with people. She was not supportive of an investigation.”

These facts related to someone identified only as “Matthew” who had voluntarily attended at the police station in question, and who had told the police that he had received a message from B accusing him of raping her. The evolution of that was encapsulated in the two agreed facts. No further action was taken after the police had spoken to B about this matter.

At the trial, the defence applied to adduce evidence of previous false allegations of rape having been made by both A, and also B. At that point the appellant was represented by different counsel, and not Mr Vullo KC who was instructed only after conviction.

Evidence involving the previous sexual behaviour of a complainant is governed by the statutory restrictions under section 41 of the Youth Justice and Criminal Evidence Act 1999 (“YJCEA 1999”). This is the current legal framework for restricting sexual behaviour evidence generally, that phrase being used to refer to evidence that covers sexual behaviour of the complainant. In some academic quarters it is referred to as the “rape shield” and its aim is to prevent the type of attack on a complainant’s character and evidence that used to be all too prevalent. This sort of attack was that because someone had been in a number of sexual relationships, or had been engaged in a particular type of sexual behaviour before, they were less likely either to have been the subject of a sexual assault or not to have consented. Essentially, the statutory provision was designed to prevent an extremely old fashioned approach to the believability of rape allegations, based on the so-called character and/or sexual history of the complainant. The current law is far more principle based, and requires certain matters to be satisfied before such evidence will be admitted, or the complainant cross-examined about such things.

The section itself states as follows:

Sometimes academically described as a “gateway approach”, section 41 YJCEA 1999 therefore restricts all evidence of sexual behaviour that is sought to be adduced, or asked about, on behalf of the defence, unless it meets the criteria for one of the four gateways. In addition, the evidence must relate to a specific instance or instances of sexual behaviour and the court must be satisfied that not to admit the evidence might make the jury reach an “unsafe” conclusion on any relevant issue in the case.

Making a false allegation of rape is also reprehensible conduct and therefore also amounts to bad character evidence. This means that if someone has previously made a false allegation of rape, such evidence is only admissible through the provisions of section 100 of the Criminal Justice Act 2003 which deals with bad character evidence of someone other than a defendant. Section 100 states:

The judge heard the application by the defence to permit evidence to be adduced of previous false allegations of rape by A and gave a ruling. In that ruling, which was given ex tempore, he considered the 2012 complaint first, and concluded that a reasonable inference could not be drawn that the complaint was false. There were deficiencies in the material available and it was of some age. He explained that “it would not pass the hurdles in section 100 of the Criminal Justice Act given its age, the completely different nature of the allegation and the limited information provided. It invites satellite litigation with the jury left in the absolutely impossible position, counsel quite rightly having indicated the questioning would be limited, to decide whether it was or was not a false allegation. It would be simply inviting the jury to do little more than flip a coin as a way of resolving it.” He therefore rejected the application in respect of the 2012 matter.

So far as the 2019 allegation was concerned, there were also very sparse details available. The judge recognised that this complaint was “very different” to the 2012 allegation. It was reported to the police by A at the same time as the incident which was the subject of the trial (and which resulted in the appellant’s conviction). A had explained to the police that someone she had met through work, when she worked at a particular shop which she named, had raped her. She gave few other details. The judge took into account all the circumstances at the time when she indicated to the police that she did not want to name the person in question and did not wish to proceed with that particular allegation, and he concluded that “there is simply nothing in the 2019 documentation that could begin to imply the allegation was false.”

He therefore refused the defence the necessary leave under both section 100 of the Criminal Justice Act 2003 and section 41 of the YJCEA 1999 for A to be cross-examined about either the 2012 or the 2019 allegations. B was however permitted to be cross-examined about the incident regarding “Matthew” which, as we have explained, was contained in the Agreed Facts. The judge explained in his summing up that the defence case on this was that “it shows that she’s prepared to lie about rape and it’s for you to decide whether that is what it shows or not. That is its purpose. The defence say it is or may be the case that she is prepared to lie about rape that never happened, well that’s what she’s done with [the appellant] and that’s the purpose you’ve heard it for…..” This was made clear in his summing up and the jury were given directions about it.

The grounds of appeal all relate to what are said to be previous false allegations of rape by A and are as follows. Amendment to the grounds was permitted by the Full Court who had ordered the rolled-up hearing in July 2025. The grounds are:

We also had the benefit of a Respondent’s Notice. We are very grateful to both Mr Vullo and Ms Pitts, not only for their helpful written material but also their oral submissions.

Given the question of fresh evidence arises in relation both to the 2012 and 2019 allegations, we shall deal with the fresh evidence here in order that our consideration of the issues can properly be followed without that consideration taking place in a factual vacuum. We shall therefore now deal with that in summary only. The appellant instructed a private investigator to carry out some investigations on his behalf after his conviction. This has uncovered certain matters to which we will now refer.

The fresh evidence relating to the 2012 incident is that it has now emerged that A was at the time of the appellant’s trial on these charges in a relationship with M, the alleged perpetrator of the rape that she said, in 2012, had been committed. Further, there is evidence in the form of witness statements from W, the former partner of M, who confirmed that although A would often discuss her sex life with M with her, W, there was never made any mention made by A to W of M raping her. M’s daughter E also provided a statement that said that A had told E in 2012 that A and M were having an extra-marital consensual sexual relationship, and E also produced a vast number of messages passing between E and A, in which a considerable amount of personal information was communicated between them, including what could be said to be a considerable degree of hostility between A and E.

Mr Vullo KC urged this upon us as either demonstrating that the 2012 allegation was clearly false, or as being relevant to a determination that it was false, together with the other features which he relied upon – and which had been contended for at the time of the ruling by the trial judge – which he submitted also showed it was false, in particular the reference by A to three other people in the block of flats where A lived. She had said that these were people who potentially may have been able to support her complaint in the sense that she said similar things may have happened to them. Mr Vullo criticises the police for not tracing these three other people, and explained that although the appellant’s private investigator had attempted to do so, he had been unsuccessful in this.

There is also fresh evidence relating to the 2019 allegation. It is important to note at the outset of consideration of the ground relating to 2019 that even the fact that there had been an allegation by A about another rape in 2019 at all only emerged in extremely late disclosure of material by the prosecution to the defence. Even that material contained only the very sparsest of details, and this point was recognised by the trial judge in his ruling.

The private investigator instructed by the appellant managed to trace the person whom A had declined to identify to the police, whom we shall refer to as L due to the risk of what is called jigsaw identification of A. His partner H, whom we similarly anonymise, was the manager of A when she had worked at the shop in question. It was identification of the workplace in the disclosed documents that enabled the investigator to track down both of these witnesses. They each gave evidence in person before us and were also cross-examined by Ms Pitts for the prosecution.

L had met A through his partner H; they had been together for 15 years. L had visited A when he was helping her with something, and explained that on this visit to her flat they had engaged in consensual sexual intercourse. He had confessed to his partner what had happened and told her that he had “been stupid”. A then “a few months after” sent H a text message stating that L had raped her. Then, later on, A had stated to H “it was rape, the police are involved”. H explained that she had doubted that it had been reported to the police and said that if it had, she would have expected the police to turn up, but that did not happen. L said that he had never been spoken to by the police about the event at all. He also said that he had come to court to give evidence before us voluntarily and because it was the right thing to do.

In determining whether new evidence should be received, the Court of Appeal will consider whether it is necessary or expedient in the interests of justice to do so and have regard to the criteria laid down in section 23(2) of the Criminal Appeal Act 1968 as amended. The Court of Appeal will consider the following:

We will deal with the fresh evidence in three categories. The evidence concerning the 2012 allegation relating to A’s relationship with M at the time of the trial; the evidence concerning the 2012 allegation from W, M’s former partner, and E, his daughter; and the evidence relating to the 2019 allegation from L and H. Given we were hearing the evidence de bene esse, we gave Mr Vullo wide latitude in terms of what the evidence covered. Some of it was, put simply, attack on the character of A that would not be permitted in the Crown Court. We have not taken account of those parts of the fresh evidence that did this, and the scope of the evidence we heard should not be seen as permitting the appellant such latitude in the Crown Court.

We do not consider that evidence relating to A’s relationship with M at the time of the trial satisfies either section 23(2)(b) or (c) of the Criminal Appeal Act 1968. Indeed, the fact that A either was in 2012, and/or at the time of the appellant’s trial and/or may be still now, in such a relationship is, in our judgment, not relevant to the issue of whether M did or did not rape her in 2012. General societal understanding of how victims of rape and sexual assault react or behave has developed a great deal over the years. This is reflected in the approach contained in the Crown Court Compendium dealing with the risks of stereotypes and assumptions about reactions to non-consensual sexual conduct. There are considerable dangers in applying what are termed myths and stereotypes in trials where an individual makes an allegation of rape. Partners and husbands are capable of rape and some rape victims form relationships with their assailants. The evidence demonstrates that in 2012 A was upset that the police were not prepared to mount a prosecution based on the denials by M, at that time given the police were adopting a view that it was one person’s word against the word of another. That approach would not prevail today. A wished to have the prosecution proceeded with at that time. The fact that she is now in a relationship with the man she accused does not necessarily mean that she made a false allegation of rape in 2012.

Nor do we consider that consideration of the other fresh evidence relating to the 2012 allegation against the matters listed in those sub-sections assists the appellant either. In particular, the fact that W says that A did not mention to her that M had raped her is nothing to the point of the 2012 complaint amounting to a false allegation at all; added to which, the evidence of E is similarly irrelevant in our view. It is unnecessary to address section 23(2)(d) in any particular respect given our view of (b) and (c), as we are clear that the evidence would not be admissible. We do not consider that it is necessary or expedient in the interests of justice to admit this fresh evidence and we do not do so.

A false allegation of rape can, potentially, engage both section 100 Criminal Justice Act 2003 and section 41 YJCEA 1999. It depends whether the false allegations of rape amount to previous sexual behaviour, which many do, but some do not. In R v YAW [2025] EWCA Crim 1143, the correlation between these two provisions relating to previous false allegations of rape was explained by this court (Holroyde VP CACD, Calver J, Sir Nigel Davis) in the following terms:

Here, what is said to be the false allegation of rape amounts to whether the sexual relations were consensual or not. That is part of A’s previous sexual behaviour and section 41 is engaged. We are entirely satisfied that on the material before him at the time relating to the 2012 complaint, the judge was then entirely correct in refusing to admit the evidence relating to that incident. This is broadly for the same reasons that he gave in his ruling. The incident occurred many years earlier, and there is no proper evidential basis for concluding that it was a false allegation. The appellant relies essentially upon the fact that her complaint in 2012 was not proceeded with, but that must be considered in the light both of the reasons for not proceeding with it that were given then (the word of M against that the word of A, thought at the time to be insufficient) and A’s clearly expressed wish that the prosecution took place. We do not consider the fresh evidence changes this, but for completeness, even were we to have admitted the fresh evidence in relation to the 2012 allegation, our conclusion would be the same. There is no sufficient or proper evidential basis for concluding that the 2012 allegation was a false allegation of rape.

We also reject that the fresh evidence provides any evidence that A told a material lie about the conversation that she may or may not have had with the appellant on the night in question. There were various differences in the accounts of A, and the appellant, regarding what took place on the night in question that was the subject matter of count 1. One of the points that Mr Vullo advances is that the text messages between A and E (contained in some of the fresh evidence) show that A was estranged from two of her children who would not talk to her. It is said that this part of the appellant’s evidence was true, given he had said that A told him this in a conversation the two of them had sitting on the bed after the sexual encounter. She had denied that such a conversation took place. There are text messages between A and E that are along similar lines regarding her relationship with her children.

This element of Ground 2 is, with respect to Mr Vullo, misconceived. Differences of account were put to A in her evidence and the jury had the benefit of those points and her responses to them. They also saw the appellant give his evidence. Her evidence relating to matters that she and the appellant had discussed such as family and health and the like, was that these were things he would have known from earlier conversations in the time they had known one another, and not from the particular evening in question. We observe that the appellant and A had not only messaged each other over a period of time, but it was uncontested that they had met in person in June 2020 and had consensual intercourse on that occasion. Whatever he knew about her family circumstances did not necessarily come from any particular conversation on the night in question. In our judgment, the fact that he knew that she was estranged from two of her children was neither here nor there. It does not mean, just because he knew this personal fact, that his account of what happened on the evening was true.

For completeness on this point, we also deal with Ground 1 here before dealing with Ground 3, which depends entirely on fresh evidence.

Ground 1 relies upon a range of matters relating to the original decision by the trial judge on the section 41 application. These matters are said by Mr Vullo to justify a submission that the trial judge was wrong not to permit the 2012 incident to be adduced. There are five different categorisations of what are said to be errors by the trial judge set out in the skeleton argument of Mr Vullo lodged on behalf of the appellant. We do not accept that any of these are errors that would justify a finding that he was wrong to exclude the 2012 incident. In particular, Mr Vullo criticises the judge’s comments that the police in 2012 did not prosecute that case to modern day standards, and that some of the comments in the occurrence log were inappropriate and misplaced. We reject that submission and agree with the judge. Some of the comments recorded were, one would hope and expect, not ones that any police officer would adopt in 2023 (when the ruling was made) or 2025. As an example, one entry refers to A behaving in a particular way “for no reason”. There is no standardised response to rape, as is now widely accepted. Given her account in 2012 was that M had raped her, expecting her to behave in a particular way as a result, or expressing a view that there was “no reason” for her to behave in a particular way, elides two different things, both equally unacceptable. One is that she should be behaving in a particular way; the other is that she was not being believed. Neither of those are things that match modern day standards of behaviour by the police when dealing with someone reporting a rape. We dismiss both Grounds 1 and 2.

We turn to Ground 3, which concerns the third category of the fresh evidence, namely that relating to the 2019 allegation from L and H. We consider that each element of section 23(2)(a) to (d) is satisfied in favour of the appellant so far as this new evidence is concerned. We consider it necessary in the interests of justice to admit the fresh evidence of these two witnesses on this appeal. We wish to make it clear that does not equate to any finding by this court that the 2019 allegation was a false allegation of rape. However, the fresh evidence does mean that there is “a proper evidential basis…..[that is] some material from which it could properly be concluded that the complaint was false”, to quote from [22] in R v AM.

We emphasise that this evidence was not available to the judge below, and the 2019 incident itself only emerged extremely late in the day due to the lateness of disclosure by the prosecution. The evidence of these two witnesses was plainly not available then, and there is a reasonable explanation by the appellant for the failure to adduce it at the trial. That explanation is the lateness of the disclosure and the shortness of time as a result. We therefore admit the evidence of L and H. It does not mean that a court would necessarily accept this evidence in preference to the evidence of A, because she has not given any. It is also solely the province of the jury in the Crown Court to decide what evidence they accept, and what they reject. We consider the fresh evidence to be “capable of belief”, which is one of the considerations in reaching our conclusion.

Mr Vullo relies on this fresh evidence in two respects under Ground 3. The first aspect is in so far as it directly relates to the 2019 allegation itself, evidence in respect of which was not permitted at the time by the trial judge; the second (which is expressed as “and/or” in the grounds) is that it is said to support the argument for the admission into evidence of the 2012 matter as being “a prima facie false complaint of rape”.

We accept the description of the 2019 incident adopted by the trial judge, who said that it was “very different” to the 2012 allegation. It was far more recent; it was reported to the police at the same time as the event which formed the subject matter of count 1; there are also now, given the fresh evidence we have admitted, some factual similarities between the 2019 incident and count 1, given how the 2019 incident is said to have occurred. We consider that, as a result of the fresh evidence, the 2019 incident satisfies section 41(2)(b) YJCEA 1999 in that the evidence relates to a specific instance of sexual behaviour; and we are satisfied that not to admit the evidence might make the jury reach an unsafe conclusion on the relevant issue in the case so far as count 1 is concerned. It will of course be a matter for the jury to decide whether they accept the evidence or not, when considering the 2019 incident and the extent to which it helps them and if so how.

We do not consider, however, that admitting the evidence of the 2019 allegation, satisfying as it does the statutory requirements, supports the admission into evidence of the 2012 matter as being “a prima facie false complaint of rape”, as Mr Vullo puts it. In our judgment the 2012 matter was properly excluded, regardless of our conclusion on the 2019 matter. Admitting the 2019 matter does not lead to a different conclusion on the 2012 incident.

This means that the first part of Ground 3, namely that the fresh evidence relating to the 2019 matter means that ought to have been admitted into evidence at the trial, succeeds. The second element of Ground 3, namely that there is a consequential impact upon the 2012 matter being admitted, does not. In our judgment, given the fresh evidence of L and H and the conclusion this leads us to regarding the 2019 matter, means that the conviction on count 1 is unsafe.

The issue then arises for consideration whether our decision on the grounds of appeal concerning the allegation by A relates only to count 1 on the indictment. None of the grounds of appeal go either to counts 2 or 3, which relate to a wholly different complainant B and events on an entirely separate occasion. Given the way in which the two separate and different incidents potentially gave support to one another in both the way the case was advanced by the prosecution and explained to the jury, we come to consider whether the convictions on counts 2 and 3 are safe, given that our conclusion is that the conviction on count 1 is unsafe.

It is impossible to know the degree to which the jury’s conclusion on count 1 impacted upon their consideration of counts 2 and 3; added to which, part of the prosecution’s case was reliance upon the degree of co-incidence between the two events. A and B were not known to one another, and their accounts each supported that of the other. We consider that the convictions on counts 2 and 3 must stand or fall with that on count 1. Given we have found the conviction on count 1 to be unsafe, it follows that the convictions on counts 2 and 3 are unsafe too. We appreciate that this means that B, who gave evidence at trial and was asked questions about the previous allegation in relation to Matthew, and who was believed by the jury who found the appellant guilty on both the counts of rape against her, sees both those convictions against her quashed, for reasons entirely unconnected with her, or anything in her past. However, that is the inevitable consequence of our finding that the conviction on count 1 concerning A is unsafe.

The modest extension of time is required because Mr Vullo was not trial counsel and some delay was experienced in his obtaining the necessary papers to advise properly and draft the grounds. Although time limits are of course important, we are persuaded that in this case, the necessary extension is justified in the interests of justice. We therefore grant leave to appeal; allow the appellant the necessary and modest extension of time; grant the application for fresh evidence in respect of the evidence of L and H, but refuse that application in respect of the other fresh evidence; dismiss the appeal on Grounds 1 and 2 and allow the appeal on Ground 3, but only to the extent that we have explained at [42] above in relation to the 2019 incident; and quash the convictions on all three counts.

We then turn to the issue of a retrial. Given we reserved judgment, we did not hear submissions on a re-trial although the prosecution indicated, very shortly after the hearing on 12 September 2025 had concluded, that were the appeal to succeed, a re-trial was sought. With the circulation of the draft of this judgment, we invited any submissions on this that may have been advanced on behalf of the appellant. None were received, and the proposed directions for re-trial were noted. However, Mr Vullo did indicate that, had judgment not been reserved, given the appeal had succeeded, he would have wished to make an application for bail. Given the change in what was the curfew address for his bail prior to his conviction, and the fact that surrender of his passport may now be considered a suitable condition, we are of the view that the Crown Court is in a far better position to deal with any application for bail. This is similar to the approach approved by this court (Leveson LJ, Owen and Flaux JJ) in R v X [2010] EWCA Crim 2368 at [2].

We therefore make the following directions regarding the re-trial, in addition to what we have already ordered and explained at [49] above concerning the other applications including the fresh evidence: