ABSTRACT
Crown Court at Reading, before McNeill J, the appellant was convicted on three counts of sexual intercourse with a girl of 13 years – in law, a child – and was sentenced to consecutive terms of 18, 15, and 12 months’ imprisonment. These three counts were specimen counts covering 10 or 11 alleged acts of intercourse. The first count covered the month of November 1987, the second, December 1987, and the third, February 1988. He now appeals against conviction and sentence by the leave of the single judge. The facts are that the appellant was a master sergeant in the United States Air Force who lived with Joanne Potts in Berkshire. Until about Christmas 1987 a friend of his had lived with a lady who was the mother of the child, the complainant, who was then aged 13. The mother herself was only 31. At Christmas the child, who had been living with the grandparents, began to live with her mother and stepbrothers. They moved in with the appellant and Miss Potts as lodgers. They left at the beginning of March after arguments concerning money. It was after that parting that these events came to the notice of the authorities. The complainant gave evidence that she began to have a crush on the appellant when in November 1987 he took her to a night-club as a reward for baby-sitting for him. She described in some detail in the witness-box the acts of intercourse which had occurred, as I say, on 10 or 11 occasions. The transcript of her evidence shows that it came out in a way which strongly suggested that on the occasion of the first act of intercourse, which she said was a week or so after the night-club visit, she was a virgin. She had been asked in the introductory questions during her evidence-in-chief about her previous boyfriends and the innocence of her association with them. She said that the appellant had said to her: ‘You’ve got to do it one day; why not now?’ Then followed her description of the penetration, the pain caused by it and the bleeding which she later discovered. It being made clear at the time that she was not then menstruating, it seems to us that it must have been perfectly clear to the jury that in giving that description of the first occasion she was describing the loss of her virginity. The appellant’s defence was that the child was lying from beginning to end. Her motive in this was to support her mother who – as the child agreed in the witness-box – had it in for the appellant as a result of the disputes which had arisen between them. One difficulty which the defence had to meet was that if she was lying, how could so young a girl have given so detailed and varied accounts as the accounts that she in fact gave of the acts of intercourse? The answer which the defence suggested as to this was that despite her age she was both experienced and sexually interested, and that she had either transposed experiences which she had had with others to this appellant and/or fantasised about experience with the appellant on whom she freely admitted having had a crush. In support of that, defence counsel wished, and it is this matter which gives rise to the appeal against conviction, first to put to her that she had told Miss Potts, a potential defence witness, that before the first incident complained of she had had sexual
intercourse with two named men and consequently she had wanted to undergo a pregnancy test. As will be seen, counsel was not permitted to put those questions in crossexamination. For convenience we refer to them as ‘the disputed questions’. Having laid the basis in cross-examination, counsel wished subsequently to call Miss Potts to give evidence of that conversation. As will be seen, he was not able to do that either, and we call this ‘the disputed evidence’. Counsel made application on the basis not only that it went to her credibility but also on the basis that it went to an issue in the case. Somewhat surprisingly when the application was originally made there was no mention of the Criminal Procedure Act 1865 (‘Lord Denman’s Act’) until the judge brought it up himself after the overnight adjournment. This was one of the difficulties with which the judge had to cope. The case was heard on circuit. Library facilities are often scant there, as they seem to have been in this case. None of the authorities which have been cited to us were cited to the trial judge. He had a difficult task. The rule which is challenged in this appeal is the judge’s ruling that whether or not the child was a virgin at the time of the first incident was not an issue material to the charge of unlawful sexual intercourse. He commented that the prosecution had rightly avoided any inquiry as to her virginity. It is right to say that the prosecution had never asked her directly the question, ‘Were you a virgin at the time?’ although it was clearly implicit from her evidence that that was what she was saying she was. The judge went on to rule that if the child had, as the defence contended, implicitly averred her previous virginity, her previous inconsistent statement, namely, that she had had sexual intercourse with two other men before this date, could not be put to her as a challenge to her credibility, as her virginity was, in the judge’s words, ‘immaterial to establishing or refuting the charge that this defendant had sexual intercourse with the girl’. For our part we are quite satisfied that both the prosecution and the child herself were putting her forward as a virgin before the first incident and that the jury cannot have doubted she was telling them of the loss of her virginity. Before we come to answering the questions posed we think it necessary to go back to first principles. One starts with the obvious proposition that in a trial relevant evidence should be admitted and irrelevant evidence excluded. ‘Relevant’ means relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put, as Lord Lane CJ put it in Reg v Viola (1982). But as relevance is a matter of degree in each case, the question in reality is whether or not the evidence is or is not sufficiently relevant. For in order to keep criminal trials within bounds and to assist the jury in concentrating on what matters and not being distracted by doubts as to marginal events, it is necessary in the interests of justice to avoid multiplicity of issues where possible. In every case this is a matter for the trial judge on the evidence and on the way the case is put before him. When one comes to cross-examination, questions in cross-examination equally have to be relevant to the issues before the court, and those issues of course include the credibility of the witness giving evidence as to those issues. But a practical distinction must be drawn between questions going to an issue before the court and questions merely going either to the credibility of the witness or to facts that are merely collateral. Where questions go solely to the credibility of the
witness or to collateral facts the general rule is that answers given to such questions are final and cannot be contradicted by rebutting evidence. This is because of the requirement to avoid multiplicity of issues in the overall interests of justice. The authorities show that the defence may call evidence contradicting that of the prosecution witnesses where their evidence: (a) goes to an issue in the case (that is obvious); (b) shows that the witness made a previous inconsistent statement relating to an issue in the case (Denman’s Act, which we deal with below); (c) shows bias in the witness: Rex v Phillips (1936); (d) shows that the police are prepared to go to improper lengths to secure a conviction: Reg v Busby (1981); (e) in certain circumstances proves the witness’s previous convictions; (f) shows that the witness has a general reputation for untruthfulness; (g) shows that medical causes would have affected the reliability of his testimony. All those categories listed, other than category (a), might be considered exceptions to the general rule as to the finality requirement of questions put on issues of credibility and collateral matters. They demonstrate the obvious proposition that a general rule designed to serve the interests of justice should not be used where so far from serving those interests it might defeat them. On that basic summary of the law two questions arise in this case. First, should the disputed questions have been permitted as questions either going to an issue or going to the credibility of the child? Second, if so, were her answers to such questions final or could evidence be given of previous inconsistent statements relating to previous sexual activities? We deal first with admission of the questions as going to credit. Originally counsel for the prosecution conceded that the disputed questions could be asked as going to credit, subject to the answers being final, but in the course of submissions he withdrew this concession. The question of roaming crossexaminations as to the credit of complainants in rape cases rightly exercised Parliament and such cross-examination was statutorily restricted by section 2 of the Sexual Offences (Amendment) Act 1976 ... [T]hough the limits on cross-examination as to credit imposed by that Act do not apply to this case, the court will not wish to see the mischief sought to be prevented by that Act perpetrated in this context and therefore will be astute to see that such cross-examination is not abused or extended unnecessarily. McNeill J was rightly concerned as to the ordeal of this child. So far as concerns the general test as to the limits of cross-examination as to credit, the locus classicus of that is to be found in the judgment of Lawton J in Reg v Sweet-Escott (1971). There the witness was cross-examined as to his credit in relation to convictions 20 years ago. As a general test Lawton J, having found that the question should not have been allowed, said: ‘What, then, is the principle upon which the judge should draw the line? It seems to me that it is this. Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence.’ ... As is clear from our summary of the judge’s refusal of the application in this
case, that is not the test that the trial judge here applied. He applied the test set out in section 4 of Denman’s Act as to the admissibility of proof of previous inconsistent statements. I should read that section to show the test he applied. Section 4 of that Act deals with oral statements and provides: ‘If a witness, upon cross-examination as to a former statement made by him’ – and these are the
important words – ‘relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such a statement’. It was on the basis of that section that the application as to Joanne Potts’ evidence could, it seems to us, have most strongly been made. The trial judge, having found that the virginity or non-virginity of the child on the occasion of the first alleged act of intercourse was not a material issue, disallowed both the disputed questions and the calling of the witness to make good what would have been put in the disputed questions. Was the trial judge right to apply the test set out in section 4 of that Act (dealing with the calling of evidence relating to the cross-examination) instead of the ordinary test set out in Reg v Sweet-Escott relating to allowing questions going to the credibility of a witness? We see nothing in section 4 which would prevent a witness’s previous statement inconsistent with his testimony before the judge being put to him to challenge his credibility even where the section did not allow the evidence of the making of the inconsistent statement to be given. So this court assumed in Reg v Hart (1957). There the appellant was convicted of wounding with intent to do grievous bodily harm, the wound being a severe knife wound concerning one Humphreys. The defence case was that the wound was caused accidentally when Humphreys came at him with a bottle. The prosecution case was that Humphreys had no bottle. It was put to him in cross-examination that he, the prosecution witness, had told a defence witness the opposite. However, the judge did not allow the defence witness to give evidence on this matter on the erroneous basis that the Act only applied to sworn statements. The court held that the judge was wrong in excluding the evidence but in that case applied the proviso. In giving the judgment of the court Devlin J made the distinction between questions going to the issue and questions going merely to credit: ‘The provision under which that evidence was sought to be made admissible’ – and this is the inconsistent statement – ‘is now contained in section 4 of the Criminal Procedure Act 1865, which re-enacted the Common Law Procedure Act 1854. Before that it had probably been the common law that, quite apart from any statute, questions were admissible – certainly in the ordinary common law courts – whereby if a witness gave evidence of a fact that was relevant to the issue (and that is important, because if the question merely goes to credit, he cannot be contradicted)’– I stress that parenthesis – ‘it could be put to him that on some earlier occasion he had made a contrary statement to somebody else and, if he denied it, that somebody else could be called’. There the distinction is clearly made between questions going to the issue and questions going to credit. Examination of the judgment suggests that the court proceeded on the basis that the question went to the issue ‘accident or not’, because the jury might have thought the point as to whether Humphreys had a bottle important. Accordingly we can see no basis either on the authorities or as a matter of principle for applying the Denman’s Act test, relating to the calling of contradictory evidence, to the question of allowing cross-examination as to credit. To that problem it seems to us that the test suggested by Lawton J in Reg v Sweet-Escott is appropriate: how might the matter put to him affect his standing with the jury after cross-examination?
