Tobin, R. v [2003] EWCA Crim 190

Case No 2002/05469/Y5[2003] EWCA Crim 190
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7th February 2003
Before
LORD JUSTICE PILLMR JUSTICE STANLEY BURNTONHIS HONOUR JUDGE FAWCUS
Between
The QueenCrownSteven David TOBINDefendant
Karl Scholz for CrownIan Unsworth for AppellantHearing Hearing date: 27 th January 2003
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
[1]On 16th August 2002 in the Crown Court at Chester before His Honour Judge Dutton and a jury, Steven David Tobin was convicted on two accounts of indecent assault. On 13 September 2002, he was sentenced to 12 months imprisonment on each count concurrent. He was required to comply with section 2 of the Sex Offenders Act 1997 for 10 years. He appeals against conviction on ground 1 of his grounds of appeal by leave of the single judge. He renews his application for leave to appeal on two other grounds following refusal by the single judge.[2]The complainant DK alleges that she was indecently assaulted by the appellant in his motor car on 27 February 2002 when she was just 16. The complainant had been drinking at public houses in Winsford, Cheshire, finally at the Brighton Belle, with a female friend of her father’s. They had a good deal to drink and the complainant was sick. The landlady asked them to leave and the appellant offered them a lift.[3]The complainant gave evidence that, in the car, she sat in the front passenger seat and the friend sat in the back and fell asleep straight away. The complainant asked if the appellant could drop her off at her boyfriend’s house. According to the complainant, the appellant took one hand off the steering wheel during the journey, unzipped his trousers, grabbed her hair and pulled her head down towards his erect penis. He was not wearing underwear and his penis touched her mouth. When she tried to pull her head back, the appellant forced it down. He then put his hand down her trousers and knickers and put his fingers inside her vagina. He then pulled her head down again and his penis touched her mouth.[4]On arrival at her boyfriend’s house the boyfriend was not at home but his brother was. The complainant was crying and could not explain what had happened. She was again sick. When her boyfriend came home, he took her to her father’s flat and her father took her inside and “grounded” her. The boy friend, very responsibly, reported the complainant’s condition to her mother, who had separated from her father and remarried.[5]In cross-examination, the complainant accepted that she had had too much to drink. The appellant had said he was doing the landlady a favour in offering the friend and her a lift. She denied that she had initiated sexual conduct in the car and denied that she had made everything up because she regretted what she had done.[6]The boyfriend’s brother gave evidence that the complainant burst into tears on arrival at the house. They approached the appellant’s car which was nearby and the appellant asked how old the complainant was. A woman was asleep in the back of the car and the appellant asked what he should do with her. The complainant said “I didn’t mean to do it. He asked me for a blowy, he forced me to do it”. The boyfriend’s mother, who was also in the house, said that the complainant was in an hysterical state and a similar comment was made to her. The appellant came to the door and asked her “How old is the girl?” He said he just wanted to know. He also wanted to know what to do with the woman in the car.[7]The boyfriend said that when he arrived home, the complainant made similar comments to him. He said that the complainant was still stuttering and shaking a week after the incident.[8]The appellant gave evidence that he was a 36 year old married man with three children and worked as a weekend shift manager. He admitted convictions, including burglaries and, more recently, assault occasioning actual bodily harm in 1994 and being drunk and disorderly in 1999. He was in the Brighton Belle, on 27 February having drunk about 2 ½ pints of cider and a pint of lager, and the complainant and her older friend arrived and were unwell in the public house. When the friend wanted a taxi, he offered them a lift. The complainant said she was going to Nixon Drive which was about a mile and a half from where he lived. He offered a lift as an act of helpfulness, as he often did.[9]In the car, the friend was very bubbly and chatty and flung her arms around the seats. The complainant said nothing. He knocked on the door of a flat in Nixon Drive, where the complainant was living, but there was no reply and the complainant asked him to take them to her boyfriend’s house in Cambridge Avenue. He asked the complainant “Who is going to put petrol in the car after doing this?” He said that the complainant replied that she would give him a “blowy” instead. He thought she was joking but she rubbed his penis, undid his jeans and performed oral sex on him. He was flattered and did not stop her. The complainant lay right across him and he put his hands over her buttocks and between her legs.[10]The appellant said he continued to drive during the act and he ejaculated in her mouth. He pulled up his zip and drove to Cambridge Avenue where the complainant directed him to a house and got out. A young lad came out of the house and spoke to the complainant. He asked the boy what he should do with the woman in the back seat and the boy replied that it was nothing to do with him. He asked how old the complainant was, having noticed that the boy was in school uniform. When the boy told him she was 16, he was “gobsmacked”.[11]The appellant said he took the older woman in the car back to Nixon Drive but there was still no one there so he returned to Cambridge Avenue and spoke to a woman who came out of the house [the boyfriend’s mother]. She told him that the complainant was very upset. In evidence he denied that he forced the complainant to do anything. It was the women who decided where to sit in the car. He had given a similar account in interview.[12]Under cross-examination, the appellant said that both women were awake during the journey to Nixon Drive but the elder woman was unconscious when they arrived there. He denied inventing the story about first going to Nixon Drive. He denied forcing the complainant to perform oral sex on him or catching her on her face with his hand. She had offered to perform the act and had done it. She was not distressed when she got out of the car.[13]Five character witnesses were called on behalf of the appellant. They described him as being decent, trustworthy, hard working and honest.[14]The ground of appeal on which leave had been granted is that the prosecution were wrongly allowed to call evidence to bolster the evidence of the complainant. Objection was taken to the prosecution calling evidence from the complainant’s mother, JB, about aspects of the complainant’s life. The judge ruled that a part of JB’s statement was admissible. By agreement between counsel, the evidence was given by prosecuting council putting leading questions to the witness with her giving short affirmative answers.[15]The substance of the evidence was:(i) “I have never had any problems with D throughout her childhood. She has always done really well at school. At home she gets on well with her brother and sisters. I would say that she is very polite and quiet. She has been brought up to respect people.”(ii) A few days before 27 February, following an argument, the complainant had left home and had gone to live at her father’s flat in Nixon Drive. Her mother, on receiving the boyfriend’s report, went there and found the complainant extremely distressed. “I could smell alcohol on D and I was shocked by this.”(iii) “I am shocked by the incident that happened with D and the way it has affected her. She is still very tearful. She will not discuss what had happened to her. She is very quiet and I can hear that she has developed a ‘slow’ speech. In addition. she trembles and shakes a lot.” Particular objection is taken to paragraph (i). Mr Unsworth, for the appellant, submits that allowing the evidence amounted to “oath-helping”, that is, seeking to boost the credibility of the complainant by reference to her good character. In Robinson (1994) 98 Cr App R 370, it was held in this Court, Lord Taylor CJ presiding, that the prosecution could not call a witness of fact and then, without more, call a psychologist or psychiatrist to give reasons why the jury should regard that witness as reliable. Evidence of the complainant’s background, it is submitted, her attitude to alcohol and her reaction to the incident went to her credibility and supported her character. Reference is made by Mr Unsworth to R v Kyselka [1962] 133 CCC 103. Giving the judgment of the Ontario Court of Appeal Porter CJO stated at p 107:
“While the credit of any witness may be impeached by the opposite party (R v Gunewardene [1951] 2 KB 600 at 609), there is no warrant or authority for such oath-helping as occurred in the circumstances of this case reminiscent as it is of the method before the Norman Conquest by which a defendant in a civil suit or an accused person proved his case by calling witness to swear that the oath of the party was true.”
It is claimed that the reference to respecting people is unacceptable in a case where the issue was whether the complainant did, or may have, initiated sexual conduct in the presence of the older woman in the back of the car.[16]In R v Hamilton (Times Law Reports 25 July 1998) it was held in this Court, Buxton LJ presiding, that evidence of good character proposed to be called by the prosecution to bolster the testimony of prosecution witnesses had no probative value in relation to any issue in the case and was to be excluded on the ground of collaterality. It was not suggested in the present case that the complainant had a general reputation for untruthfulness so as to permit her reputation to be reinstated by evidence that she is worthy of credit, under the principle in Toohey v Metropolitan Police Commissioner [1965] AC 595 per Lord Pearce at p 606E.[17]For the prosecution, Mr Scholz accepts that it is not generally permissible to call evidence that a witness is truthful. He submits that evidence is permitted which is relevant to an issue in the case or goes to the likelihood of whether the events claimed by the witness to have occurred did occur. The issue in this case was whether the sexual conduct in the car was initiated by the complainant or by the appellant. Evidence of her attitude, towards her family and other people, threw light on the issue and was likely to help the jury to decide whether she is the type of person who would do what the appellant said she did.[18]In R v Funderburk [1990] 1 WLR 587 (Watkins LJ, Henry and Morland JJ), the complainant, a 13 year old complainant in a case where unlawful sexual intercourse was alleged, gave evidence which amounted to an account of the loss of her virginity. The judge refused an application by the defence to call evidence that the complainant had admitted to a potential witness that she had had intercourse with two other men. The Court held that the evidence should have been admitted but applied the then existing proviso to section 2(1) of the Criminal Appeal Act 1968 and upheld the conviction. The decision of course pre-dates the provisions of the Youth Justice and Criminal Evidence Act 1999.[19]Giving the judgment of the Court, Henry J referred to the defence submission that the challenge to the claimant’s virginity did not go “merely to credit but that the disputed questions go directly to the issue and not merely to a collateral fact”. Henry J stated:
“We are disposed to agree with the editors of Cross on Evidence, 6th ed. (1985), p. 295 that where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point. I read from that work: ‘It has also been remarked that sexual intercourse, whether or not consensual, most often takes place in private, and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely to depend on the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point.’” ‘It has also been remarked that sexual intercourse, whether or not consensual, most often takes place in private, and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely to depend on the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point.’”
[20]Henry J referred to the test posed by Pollock CB in Attorney-General v Hitchcock (1847) 1 Exch 91 at 99:
“The test whether the matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence – if it has such a connection with the issues, that you would be allowed to give it in evidence – then it is a matter on which you may contradict him.”
Henry J continued:
“The difficulty we have in applying that celebrated test is that it seems to us to be circular. If a fact is not collateral then clearly you can call evidence to contradict it, but the so-called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutor’s and the court’s sense of fair play rather than any philosophic or analytic process.”
[21]The prosecution in that case accepted that the defence would have been able to call evidence that the child was a virgin before the date of the alleged offence. The Court thought that concession inevitable stating “Otherwise there would be the danger that the jury would make their decision as to credit on an account of the original incident in which the most emotive, memorable and potentially persuasive fact was, to the knowledge of all in the case save the jury, false.”[22]In R v Amado-Taylor, 2001 EWCA Crim 1898, it was held in this Court, Keene LJ presiding, that evidence about a complainant’s lack of sexual experience and about her attitude and religious belief that intercourse before marriage was wrong is capable of relating to the issue of consent, and, if it does, is capable of being relevant and admissible, even though it may at the same time go to bolster her credibility. The defence to the charge of rape in that case was not just consent but enthusiastic participation with a person hardly known to the complainant. Funderburk is not cited in the judgment.[23]The Court accepted the proposition that in criminal trials generally evidence is not admissible simply to show that a prosecution witness has a good character, in the sense that he or she is generally a truthful person who should be believed but went on to hold that cases may arise where evidence of the victim’s disposition or character may well be relevant to an issue in the case. The Court concluded:
“… at common law evidence about the lack of previous sexual experience of a complainant, and about her attitudes and religious beliefs that intercourse before marriage was wrong, can relate to the issue of consent, and, if it does, is capable of being relevant and therefore admissible, even though it may at the same time go to bolster credibility.”
[24]In his ruling on admissibility in the present case,

the judge referred to the issue:

“The stark way in which it is put is this 16 year old is a liar and I do not see why in this very limited way the jury should not have some assistance on that issue”
. This ruling, which in form comes close to approval of oath-helping, was not of course before the jury. In the course of his summing-up,

the judge stated:

“The credibility of [the complainant] and the credibility of the defendant are important matters and you know a little bit more about the two individuals. You have heard character references and witnesses talking about Mr Tobin. You have also been told his position in the round, warts and all, that he has got convictions, he has been before the Court before some time ago, nothing like this. That is in order you should know the entire picture.”
The judge went on, and no complaint is made of it, to describe the limited relevance of the convictions, which had been admitted at the initiative of the defence. The judge referred to the defence “presenting his character in the round for you”.[25]Complaint is however made about the judge’s reference to the complainant:
“Well, picture [the complainant] now, look back to the way she presented herself, what you know about her, what her mother said about her both before the 27th February and also perhaps afterwards. Has she told you the truth?”
The jury were plainly invited, it is submitted, to treat the mother’s evidence as evidence that the complainant was a truthful witness.[26]There was a stark conflict of evidence between the complainant and the appellant. The dispute in this case was not merely as to whether the complainant had consented to sexual conduct. The appellant’s case was that, under the influence of drink, she initiated the oral sex in circumstances which were bizarre in that the appellant was driving a motor car at the time. Her complaint was that he took the initiative and used a modest amount of force to achieve his purpose. Plainly the jury’s view of the credibility of the complainant and the appellant was crucial to the outcome of the trial.[27]Before expressing our conclusions on ground 1 we deal briefly with the second and third grounds so as to include a further reference to the evidence. It is submitted that, the mother having been called to give evidence, the defence should have been allowed an adjournment to investigate the complainant’s character. Sight would have been sought of the complainant’s medical records. She had missed an appointment for a contraceptive injection on the afternoon of the incident. She claimed that it was the first such appointment and she had never had sexual intercourse. That evidence appeared in her video interview with the police which served as her evidence-in-chief. It would have been checked and other enquiries made about her character, it is submitted.[28]The interview was of course disclosed prior to the hearing. On behalf of the appellant it was sought neither to delete those references from her interview which was to be presented to the jury nor to seek disclosure of medical records. It was clear, at that stage, what the issues at the trial were likely to be. Having failed to seek directions at that stage, we see no merit in the suggestion that the judge ought to have granted an adjournment as a result of limited evidence from the mother being admitted at the hearing.[29]A third ground of appeal is that the judge’s questioning of the appellant when the appellant had otherwise completed his evidence amounted to an undesirable entry into the arena. It is submitted that the series of questions posed by the judge may have suggested to the jury that the judge had formed an adverse view of the appellant.[30]Having seen the series of questions and answers, we reject that submission. The judge elicited two pieces of evidence although we do not know the extent to which, if at all, the subjects had been canvassed in cross-examination. The appellant agreed that what the complainant had done to him had been a pleasurable experience and also asserted that there was nothing wrong with the complainant when she left his motor car. She left it quietly. The line of questioning was relevant to issues before the jury and we see no valid objection either to the manner of questioning or to the admission of the answers elicited.[31]We return to ground 1. Mr Scholz’s extreme position was that evidence is admissible which goes to establish that the complainant is not the type of person who would conduct herself in the manner alleged by the defendant. As a general proposition, that is not acceptable. It could amount to oath-helping. The approach could lead to evidence of a lack of propensity being admissible whenever allegations of unacceptable behaviour are made against a prosecution witness. Moreover, in this case, the complainant was plainly seriously under the influence of drink, a disinhibitor, and the possibility of behaviour in drink which may be out of character is not excluded by evidence of normal behaviour when sober.[32]We do however, respectfully, recognise the force of the observation of Henry J in Funderburk, adopting Cross on Evidence, that in sexual cases such as these much is likely to depend on the balance of credibility between the parties and that the difference between questions going to credit and questions going to the issue may be reduced to vanishing point. Moreover, in such a situation, as Henry J stated in Funderburk, the answer to the question whether evidence of the type to which objection is taken in the present case is admissible is “an instinctive one based on the prosecutor’s and the Court’s sense of fair play”.[33]In Amado-Taylor, evidence of the complainant’s opinions was admissible as relevant to the issue whether intercourse was consensual. The present case is different, on its facts and the offence alleged, and, secondly, the disputed evidence does not involve the complainant’s opinions but what may be described as her attitude to other people. However, the approach of the Court in Amado-Taylor, as in Funderburk, points clearly in the direction that, in sexual cases, prosecution evidence of the complainant’s background and characteristics is not inevitably excluded.[34]This was a case in which very full evidence was given about the background and character of the appellant. His character was put in, as the judge put it, “In the round”. In the circumstances, our sense of fair play is not offended but rather affirmed by the admission of the very limited evidence about the complainant’s characteristics and conduct which occurred. The evidence may have been of very little value and indeed objection could be taken on the separate ground that it was irrelevant because the complainant was admittedly affected by alcohol and not behaving normally. Moreover, the suggestion by the prosecution that she would not have acted as she is alleged to have acted in the presence of a friend of her father’s, because she respects people, has little relevance if her evidence that her older friend was insensible was true. It may be added that the evidence that the complainant had very recently left home is potentially relevant as background to the events of the day and was unlikely to assist the prosecution case.[35]We have come to the conclusion that the mother’s evidence was admissible. The limited evidence that the complainant gets on well with her brothers and sisters, did well at school, is very polite and quiet, respects people and had left home does not render the trial unfair or offend the rule against oath-helping. It was not necessary to achieve fairness to prevent the jury from having that limited information about her. Moreover, as the case was argued, it was not to be excluded for lack of relevance. Given the jury’s vital task of deciding the issue whether the events were as described by the complainant or as described by the appellant, the prosecution were entitled to adduce the evidence they did in the circumstances of this case.[36]We see no merit in the complaint about the admission of the mother’s evidence as to the complainant’s condition after the incident. The point was hardly pursued on the appellant’s behalf. Such evidence is often fairly admitted and the fact that it covered a longer post-incident period than is usual did not, in this case, render it inadmissible. Evidence from her boyfriend as to the complainant’s condition for over a week after the incident was given without objection from the defence.[37]In our judgment, the trial was fair and the conviction safe. The appeal is dismissed on ground 1 and leave to appeal is refused on grounds 2 and 3.

Cited in 1 later judgment