R v John McNair

The provisions of the Sexual Offences (Amendment) Act 1992 applied to this offence. Under those 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 Act. The complainant in the present appeal has sadly since died. We will refer to her as "the complainant" throughout.

On 2 October 2024, in the Crown Court at Isleworth (HHJ Edward Connell), the appellant (then aged 43) was convicted of the sole count on the indictment, rape, by a majority of 10-1 and was sentenced to 8 years' imprisonment.

The appellant appeals against conviction by leave of the Single Judge.

The circumstances of the alleged offending were as follows. In July 2022 the complainant, who subsequently died in May 2023 from a heart condition with alcohol-related liver disease, lived in a multiple occupation house in Southall. She had lived there for a few weeks, and her room was on the first floor. She was 60 years old and an alcoholic. One of the other rooms was occupied by the appellant and his then girlfriend, Alexandra Butkiewicz.

On Sunday 10 July 2022 the appellant was heard asking his girlfriend for sex, which she declined. He told her that he could get sex for £10 and left the premises, before returning shortly after with several bottles of wine that he had purchased at a late-night off-licence. At some point following his return, he entered the complainant's room.

It was not in dispute that the appellant's girlfriend entered the room and found him in there. An argument ensued and the appellant was accused of rape. Police were called the following morning, Sunday 11 July, and they spoke to the complainant and others present at the address.

The complainant began drinking from a bottle of wine whilst the police were present, and her demeanour was described as erratic thereafter. The complainant told the police, as captured on body-worn footage, that the appellant had told her he had four bottles of wine so they needed to have sex and began to have sex with her. She told him "no" and asked him to finish and go.

The appellant's girlfriend came in when he was standing up, undressed from the waist down with an erect penis. The complainant initially refused to go to the hospital or the Haven Clinic to be assessed. The appellant attended the police station voluntarily on 12 July, where he was arrested and interviewed the following day.

The complainant provided police with an ABE interview on 15 July 2022 (so 5 days after the alleged events). In her ABE interview the complainant said that the appellant entered her room without knocking. She was in bed naked. The appellant said he had purchased four bottles of wine for her and put them in the fridge. He then pulled his trousers down, removed the bed covers, opened her legs and put his penis inside her vagina. She told the appellant to stop it. She thought the appellant had been on top of her for around 10 minutes, then the appellant's girlfriend entered the room and the appellant jumped off her. The girlfriend came into the room before the appellant had time to pull his trousers up and she saw him naked. The girlfriend then started hitting the appellant and she told the appellant to leave the room.

The complainant further explained that two of the neighbours came approximately 10 minutes later because the appellant and his girlfriend were arguing loudly. She said that she had drank about two bottles of wine and could not remember if she drank anything later that day. She normally drank around four bottles a day. Drinking would make her sleepy and give her memory loss, but she stated that she did not lose her memory from drinking two bottles of wine.

The prosecution also relied on the evidence of Shannon O'Riordan, who had been living in the property for around two to three weeks with her then boyfriend. She admitted that she had lied in her witness statement to the police when she said that a person called "Ashlin" had been present in the room. Ashlin was not there. Ashlin was her boyfriend's sister and was the person who was supposed to be staying in the property. She said that she lied in her statement because she did not want Ashlin to get into trouble, if people found out she was effectively sub-letting. She agreed in cross-examination that it was a deliberate lie, made knowing that when she signed the statement she was signing a declaration that she would be liable to prosecution if she told any lies within the statement. She said that she had been honest, and the night before she had to come to court, she realised it was wrong to lie. She gave evidence as to who lived in the property and said, in relation to the occupants of one room, said she may have been confused about who lived in it and "I was properly all over the place at the time of making my statement".

On the evening in question, she was in her room with her boyfriend, Nuru, when she heard the appellant arguing with his girlfriend; they were in the room above. They were arguing about the fact the appellant's girlfriend did not want to have sex, the appellant said he could get sex for £10 and called his girlfriend a whore. The appellant then left the property, returning around 30 minutes later. Whilst he was gone, she spoke to his girlfriend who was upset. When the appellant returned, he went to the complainant's room and gave her three bottles of wine and said there were three more in the fridge. She thought the appellant's voice did not sound nice and that he sounded under the influence. She and Nuru left her room and went downstairs. They passed the appellant on the way, who was sitting outside her room with his hands on his head.

Whilst downstairs she heard the appellant's girlfriend shouting, "You rapist, you fucking rapist, you arsehole". She and Nuru went back upstairs; the complainant's door was open and the complainant was on the bed, naked on her lower half crying that the appellant had raped her, asking him why and she heard the appellant say "So what?". The appellant's shorts were open, and she could see his pubes and a bit of his penis. They asked the appellant to leave the house and Nuru took him out. She had no recollection of Nuru following the appellant and beating him up and she said she was not involved in that.

Forensic swabs were taken from the complainant on 13 July at the Haven Clinic, and subsequently from the appellant. No semen was located on the vaginal swabs (low, high and endocervical). There was an absence of DNA attributable to the appellant from the swabs. The forensic scientist concluded that the overall findings did not assist in addressing the issue of whether the appellant had vaginal intercourse with the complainant as alleged. The doctor who examined the complainant on 13 July noted no genital or extra genital injuries.

The appellant denied the offence in interview. He said the complainant was an alcoholic and had asked him to go to the shop for her. When he returned he knocked on her door, sat on her bed and said the wine was in the kitchen. He stood up and was readjusting his shorts because his belt was broken, when his girlfriend walked in. The complainant stood up, was naked and alleged rape. He denied it and left the room. The male from Room 2 entered his room, he denied he had done anything wrong however the male assaulted him. He had to go to hospital for his injuries. He said there would not be any DNA because he had never touched the complainant. He agreed that he had earlier joked to his girlfriend about getting a prostitute for £10 because his girlfriend did not want to have sex.

The prosecution case was that the complainant was reliable and supported in part by the evidence of Shannon O'Riordan and the body-worn footage. The appellant wanted sex that night, and when his girlfriend refused, he entered the complainant's room and had sexual intercourse with her without her consent.

To prove their case, the Prosecution relied on the ABE evidence in chief of the complainant (which was admitted as hearsay) , the evidence of Shannon O'Riordan, the body-worn footage from the police officers who attended the scene, the evidence from the officer in the case as to the lie told by Shannon O'Riordan and the Agreed Facts.

The defence case was that there was no sexual contact with the complainant at all. The appellant gave evidence that he was living in the hostel, which was for people with alcohol and drug issues, with his girlfriend. His girlfriend was an alcoholic, and he had a problem with heroin since 2004. However he had stopped taking illegal drugs at the end of 2019 when he met his girlfriend and instead took methadone. On the day they had all been drinking and smoking cannabis in the garden. People returned to their rooms in the evening. His girlfriend was drunk and wanted a nap. They were talking about the trip they were due to go on the next day. He did make a joke about buying sex that evening, before he went to the off-licence. He had made the comment several times before, to wind his girlfriend up.

He purchased some wine, including for the complainant because she had asked him earlier in the day to get her some if he went to the shop. He had bought her wine before and was allowed to use her bank card to get wine and things for himself.

When he returned from the shop, he placed most of the wine in the kitchen and went to the complainant's room to tell her about the wine and that he had purchased train tickets using her card, which he had not asked or told her about previously, but which he said he would pay her back for.

He knocked on the complainant's door and she told him to come in. She gave him a hug to say thanks. He sat on the end of the bed. He was wearing shorts; however the main button was broken, and the belt was split which meant they did not hold the shorts up properly. His shorts were hanging below his hips and fell further when he stood up as his girlfriend was entering the room. His girlfriend started screaming and calling him a rapist. His account was that the complainant did not say anything, other than asking them both to leave the room.

He went to his room. Around 5 minutes later he heard some of the others leaving Nuru's room. Nuru entered his room with a knife and table leg and assaulted him. He assumed his girlfriend had told the others what she had seen. They were all, he said, drunk and stoned. Shannon O'Riordan was also there and had a table leg in her hand. As a result of the assault, he suffered a broken nose, arm and elbow, for which he was treated at the hospital that night.

In the course of his cross-examination, the appellant confirmed that he had wanted sex with his girlfriend that night. He said that he went to the complainant's room because of the wine he had purchased for her, and to let her know he had used her bank card to buy train tickets without her permission (that was a matter which he had not mentioned in interview). He said that he did not mention the train tickets in his interview because he did not want to get arrested for fraudulent use of her card. He said that he might have told the police he went to her room to tell her about wine, which was in the kitchen, but what he meant was that he was saying in evidence that he went to tell her and gave her some wine. Despite his interview, he did not hear the complainant allege rape; his belt was broken and he demonstrated it whilst giving evidence. As to any discrepancies in his Defence Statement, interview and evidence he stated that this was because things were confusing that night, and he denied changing his account.

The issue for the jury was factual, namely whether any sexual activity took place at all.

Following the death of the complainant, the prosecution applied under section 116 of the Criminal Justice Act 2003 to admit the ABE video-recorded interview of the complainant and body-worn footage of her complaint to the police. It was not disputed that the evidence satisfied the relevant conditions for section 116 given that the complainant was deceased. The appellant's counsel, Shenaiya Kharegat, who also appears before us on the appeal, submitted that if admitted, the evidence would have such an adverse impact on the fairness of proceedings that it ought to be excluded under section 78 of PACE 1984, relying on sections 114(2)(h) and (i) of the Criminal Justice Act 2003. In addition, it was submitted that had there not been a delay in charging the defendant, the complainant could have been cross-examined under section 28 prior to her death in May 2023.

The judge hearing the application (Recorder Lofthouse, who was not the trial judge) ruled that such prejudice as there was, was limited, and concluded that the admission of the evidence would not have such an adverse impact on the proceedings that it ought to be excluded. The relevant authorities and the guidance in Horncastle, Al-Khawaja and Riat had been considered, as had the relevant factors set out in section 114(2) of the Criminal Justice Act 2003. The ABE was the principal evidence and it had substantial probative value, it being the account of the complainant and only witness present at the time of the alleged offence. Other matters could be given as to the events including the evidence of the complainant to the defendant's then partner, Alex Butkiewicz, which could be admissible under the res gestae rule; evidence as to the earlier exchange when the defendant demanded sex from his then partner; evidence from his then partner that she saw the complainant naked and uncovered and the defendant standing over her and the evidence of Shannon O'Riordan as to the defendant's state of dress.

Whilst the complainant was vulnerable, she was lucid and coherent and gave an account the jury could be satisfied was reliable and accurate. That conclusion was fortified by the supporting evidence referred to. It was right that the account could not be challenged by cross-examination. However, that could be mitigated by careful directions to the jury. Further, the defendant was interviewed and gave an account, and other witnesses could give evidence at the trial and be challenged by cross-examination and inconsistencies identified relied on (as he referred to at paragraph H of his Ruling). The Prosecution had already disclosed notes as to the complainant's drinking.

On the day of the trial, the prosecution explained that the first witness, the appellant's girlfriend, Alex Butkiewitz, had been witness summonsed but had not arrived and she had told police that she was not feeling well. A note form the GP set out that she needed to rest for several weeks and was due to have blood tests at the hospital. The second witness, Shannon O'Riordon, was willing to be a witness but had requested special measures because she was in protected accommodation. O'Riordan, as we have already foreshadowed, had provided a further witness statement in which she admitted that when she said Ashlin Bachelor was present at the address in her earlier statement, it was a lie. The Crown therefore could not rely on Ashlin Bachelor as a witness of truth and therefore Bachelor would not be called and relied on. The witness Nuru Matamula had not been in contact with the police since his witness statement and he could not be found.

Counsel for the defence submitted that the court should revisit the hearsay ruling in light of the number of witnesses who had fallen away. The earlier ruling considered the ability to challenge the evidence of the complainant and the prosecution case by the cross-examination of other witnesses and identifying any inconsistencies. Those other witnesses supported the complainant but the only witness left had recently accepted that she had been untruthful in statements before and had sought not to attend court on many occasions. Butkiewitz, even if available, had made a withdrawal statement stating they were all very drunk and her initial statement was wrong. Bachelor was also untruthful and therefore, in an extremely serious case where the complainant could not be cross-examined at all, it would be wrong to rely on only one witness who had accepted being untruthful.

Counsel for the prosecution submitted that even if the case fell to O'Riordan and the hearsay evidence of the complainant, none of the other witnesses said anything in principle that was different to O'Riordan, and the defence largely agreed with parts of what she said. Further, the absent witnesses were broadly supportive of the prosecution case and therefore their absence did not disadvantage the defence.

The trial judge, HHJ Edward Connell, ruled that the hearsay ruling would stand. It was important to analyse what evidence the missing witnesses could be cross-examined about that, in their absence, would be prejudicial to the defence. It was not suggested they were present for the alleged rape, the sole evidence for that came from the deceased complainant. The other witnesses were only able to give evidence about things they saw and heard either immediately before or afterwards. In giving his reasons for admitting the hearsay, the Recorder took account of the guidance set out in the relevant authorities. The Recorder's observations at paragraph H were but one consideration in the overall decision-making process. In addition the Recorder indicated that the defendant's account in interview would be before the jury, and he could himself give evidence at trial if he chose. Further, the Prosecution indicated that any other inconsistencies as to what occurred before and/or after the allegation could be put before the jury in some form. The judge concluded that the Recorder's conclusions remained valid and in accordance with the law. The absence of the three witnesses to events before or after the allegation did not invalidate the original ruling.

Thereafter, counsel for the Defence submitted that the case should be stopped in accordance with section 125 of the Criminal Justice Act 2003, namely because the evidence was unconvincing and the case was based wholly or partly on a statement not made in oral evidence, and a conviction would not be safe. It was said that the complainant was not reliable; she was an alcoholic who may well have been drunk at the time of her first disclosure, and possibly even during her ABE. The complainant had admitted memory loss after two bottles however the Haven notes said she had drunk four and the complainant said she had to have two bottles minimum to stop shakes and seizures. There was therefore a potential for memory loss and confusion.

In addition, there was a lack of forensics, there were varying accounts between what the complainant told officers at the scene, in the ABE and what she told the Haven, which made her an unreliable witness. No other person was present at the time of the alleged penetration. The sole other witness who the prosecution submitted supported the complainant in a general sense, had admitted lying in relation to one aspect of her evidence. In accordance with R vIbrahim [2012] EWCA Crim 837, upmost in the court's mind should be the question of whether any untested hearsay statement had been shown to be reliable in the light of all other evidence adduced. There was little to corroborate actual penetration.

Counsel for the prosecution submitted that the complaint of rape was made at the time the defendant was in the room, it was not a case of recalling a conversation from several days earlier. There was no evidence that the complainant fabricates or lies. She had repeated the allegations on the body-worn footage and thereafter at the ABE. The allegation was supported by surrounding circumstances such as the defendant requesting sex from his girlfriend immediately before the allegation, and O'Riordan's evidence that she saw the defendant's exposed pubic area in the room.

The judge ruled that the case would continue. There was evidence that the complainant had drunk alcohol that evening, but she was able to give a lucid account to the police upon their arrival at the scene and then gave a lucid account in her ABE. The ABE was clear as to her allegation of rape and she set out the detail of what took place. O'Riordan gave evidence that the defendant had asked his girlfriend for sex immediately before the allegation and if she was correct, it was done so in an aggressive way. O'Riordan also gave evidence that on hearing screaming from upstairs, she went upstairs, entered the room and saw the defendant in a state of undress and the complainant naked on the lower half. The complainant made an allegation of rape, and the defendant shrugged it off and said "So what?" The defence submitted that O'Riordan was inherently unreliable because she admitted on oath to telling a lie in her witness statement about the presence of someone else that night. She had explained why to the jury. That lie did not render the entirety of her evidence as unreliable. The jury had a clear account from the complainant and the judge was not of the view that it was unconvincing.

Three grounds of appeal against conviction, for which leave was granted, are advanced:-

First, that the Recorder erred in granting the prosecution application to adduce the deceased complainant's evidence under section 116 of the Criminal Justice Act 2003. Whilst the complainant's first interaction with the police and later ABE interview was admissible under section 116 (as the complainant was deceased) it should have been excluded pursuant to section 126 of the CJA 2003, section 78 PACE and in the interests of justice. The judge placed undue weight on the ability to challenge the complainant's account and insufficient weight on the prejudice to the appellant. The judge reasoned that there would be limited prejudice to the defence due to the ability to challenge the complainant's account through other witnesses and unused material, however those witnesses were not witnesses to the actual allegation. The judge was also wrong to consider the matter qualifying under res gestae and no application was made under those provisions.

Secondly, the trial judge erred in refusing a defence application to revisit the previous hearsay ruling. At the time of the original ruling on hearsay, it was believed that four witnesses would be attending, all of whom entered the complainant's room in the aftermath of the penetration. In fact, only one witness was due to attend trial, and that witness had already accepted lying in her statement. The defence argued that that changed the premise of the previous ruling entirely. The missing witness tipped the balance significantly toward prejudice to the appellant and severely impacted his ability to have a fair trial and the original ruling should have been reconsidered.

Thirdly, thereafter the trial judge erred in refusing the defence application to dismiss the case under section 125 of the Criminal Justice Act 2003. At the conclusion of the prosecution case, that application was made on the basis that any conviction would be unsafe, being so reliant on unconvincing hearsay evidence. The weaknesses in the complainant's accounts were highlighted and compared with the evidence of the one live witness and the inherent unreliability of the complainant herself. There were multiple inconsistencies in the accounts which may have resulted from lies, confusion or intoxication. The sole live witness was also unreliable, having admitted lying in her police statement one day before the trial, whilst the forensics were equivocal.

In her oral submissions Ms Kharegat focused, in particular, on the second and third grounds. The Prosecution lodged a Respondent's Notice and Grounds of Opposition, which counsel for the prosecution, Ian Hope, developed at the hearing before us.

The prosecution submit as follows:

In granting leave to appeal against conviction, the single judge considered that the trial judge arguably erred in allowing the deceased's complaint's hearsay account to be admitted even after three prosecution witnesses had fallen away. The Recorder had appeared to reason that because the absent witnesses' account would probably have supported the prosecution case, their absence would, if anything, benefit the defence. He considered that the reasoning did not grapple with the issue of whether there was any good testing material to compete with the deceased complainant's unchallenged hearsay account, in circumstances where this was a case where it could not be said that the hearsay was "demonstrably reliable" (per Edis LJ in R v BOB [2024] EWCA Crim 1494 at [5]). The question should have been whether its reliability was (ibid.) "capable of proper testing and assessment", and he considered that it was arguable that the judge did not properly address that latter question and, if he had done, he might well have concluded that it was not.

We are grateful to Ms Kharegat and Mr Page for the quality of their submissions before us. Upon examination we consider that the Recorder was right to admit the hearsay evidence under section 116 and that the trial judge was right to allow such ruling to stand, and not to accede to the defence application to dismiss the case under section 125 of the Criminal Justice Act 2003.

Like many cases relating to sexual offences the only two witnesses to the actual alleged sexual offence itself (here rape) were the complainant and the defendant, with the complainant's account and that of the defendant (if they chose to give evidence as the appellant did in the present case). In many cases, there will only be the respective accounts that are before the jury (though that is not the case in the present case). The respective evidence will be tested like any other evidence, including in relation to any inconsistencies, and any matters that may call into question the reliability of such evidence. Such matters were in play in the present case, and it is not suggested that the jury were other than properly directed in relation thereto. Ultimately it was for the jury to decide which account was to be preferred and, ultimately, whether the prosecution had satisfied them, so that they were sure, that the sexual intercourse had taken place.

In this regard the complainant's accounts were admissible hearsay evidence under section 116 in circumstances in which the complainant subsequently died. We do not consider that the Recorder or the trial judge erred in admitting such evidence, and then in rejecting the submission that such evidence should have been excluded either pursuant to section 126 of the CJA 2003, or in accordance with section 78 PACE 198 or in the interests of justice.

In this regard we do not consider that undue weight was placed on the ability to challenge the complainant's account or insufficient weight given to the prejudice to the appellant (when viewed together with the appropriate directions that were given to the jury).

Unlike many cases, this was not in fact a case where the evidence was limited to that of the complainant and (in the event) the defendant, nor was there any fundamental change between the time of the Recorder's ruling and when the trial judge was invited to re-visit the admission of the hearsay evidence. Whilst the Recorder had (rightly) had regard to the possibility that the defendant would be able to cross-examine three other envisaged witnesses, who in the event were not called, the reality (as recognised by the trial judge) is that the evidence of such witnesses would have been unlikely to have assisted the appellant (given that they did not witness the alleged penetration) and the evidence they could have given, in particular as to events immediately before and as to the immediate afterwards would, in all probability, have been supportive of the complainant's account, and damaging to the appellant's defence. The suggestion that cross-examination would "unearth" inconsistencies and that this would necessarily weaken the prosecution case is somewhat speculative and indeed risked entrenching evidence adverse to the defence. The fact that such witnesses were not, in the event called, did not justify departing from the existing ruling on the hearsay application.

This was a case where the reliability of the complainant's evidence was capable of proper testing and assessment. All the points made as to inconsistency and reliability could (and were) made before the jury for the jury to consider, and the appellant could (and did) give his account of events and in rebuttal of the allegations made against him. The forensic evidence was itself neutral, neither assisting the prosecution nor the defence. The inconsistencies in the complainant's evidence, for example the complainant's accounts of the amount of alcohol that she had consumed that evening, and matters impacting upon her evidence (that she was an alcoholic, had consumed alcohol and also taken medication that would or might have interacted with the alcohol consumed) were classically matters for consideration by the jury. Such matters did not render the complainant an inherently unreliable witness, nor did they fatally undermine her evidence.

It is hardly uncommon for there to be inconsistencies in a complainant's evidence, including after drink, and the central issue was as to whether penetration occurred, which could be addressed by the defendant. The body worn footage and the ABE was a matter for the jury, though we have viewed the footage for ourselves, and consider that the coherence of the account in the ABE, and the clarity of the complainant's evidence, and her understanding of the questions asked, is clear to see.

Equally, it is not suggested that the hearsay direction given was anything other than appropriate, and the jury were properly directed as to the difficulties that the appellant faced as a result of being unable to cross-examine the complainant.

Furthermore, in the present case, the complainant's hearsay evidence did not stand in isolation, and there was evidence in relation to events before and after the alleged penetration which would be (and was) before the jury, and was capable of supporting the Crown's case (and undermining the appellant's defence). Much of that evidence was uncontested by the appellant himself. It included that the appellant had asked his girlfriend for sex immediately beforehand and she had refused and that following that refusal the appellant said he could get sex for £10 (it being a matter for the jury to assess whether he said that as a joke or not). Equally the appellant had been inside the complainant's bedroom for some time before his girlfriend entered and accused him of raping the complainant, the complainant was in a state of undress, the appellant was in a state of undress, and the complainant accused the appellant of rape contemporaneously. All such matters were relevant to the assessment of the complainant's evidence, and if the appellant had any answer to such matters, he was able to give that through his own evidence. What the jury then made of it was a matter for them. Equally the appellant was in a position to make (and did make) points as to the reliability of the evidence of the only other witness who was called, Ms O'Riordon, though the fact that she had lied about the presence of the tenant in her evidence (about which she gave an explanation which could have been accepted by the jury did not necessarily mean that she had lied in other aspects of her evidence (including about what she had seen and heard), and such matters were, again, classically, a matter for the jury.

In the above circumstances we are satisfied that the hearsay evidence was properly admitted, and neither the Recorder nor the trial judge erred in their respective rulings or (in the case of the trial judge) in the subsequent legal directions, the trial was not unfair, and there is no basis on which it can be said that the conviction is unsafe.

The appeal against conviction is accordingly dismissed.