Cartwright, R v [2007] EWCA Crim 2581

[2007] EWCA Crim 2581Case No 2007 01205 C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM STAFFORD CROWN COURT
HH JUDGE GLENN
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/11/2007
Before
THE PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE PITCHFORDMR JUSTICE OPENSHAW
Between
RCrownCartwrightDefendant
Mr John Perry QC and Mr Chester Beyts (instructed by Tuckers) for appellantMr Mark Ellison and Mr Simon Drew (instructed by CPS) for respondentHearing Hearing date: 10 th October 2007
Judgment
[1]This is an appeal by Kevin Cartwright against his conviction on 9th February 2007 in the Crown Court at Stafford, before His Honour Judge Glenn and a jury, of rape, indecent assault, and assault occasioning bodily harm. Beyond what may be described as standard grounds of appeal, an important point of statutory construction, whether the trial proceeded on the incorrect premise that section 41 of the Youth Justice and Criminal Evidence Act 1999 was in force, requires decision. Throughout the remainder of this judgment this provision will be referred to as section 41.[2]There were ten counts in the indictment. Count 1 charged a specific, and the first occasion of vaginal rape. Counts 2 to 5 were specimen allegations of vaginal rape during each of the calendar years 1997 to 2000. Count 6 alleged a specific incident of anal rape sometime between January 1998 and December 2000. Counts 7 to 9 were specimen allegations of indecent assault, by forcing the complainant to submit to oral penetration during each of the years 1998 to 2000. Count 10 charged a specific allegation of assault occasioning actual bodily harm on or shortly before 1st June 1998.[3]The appellant was convicted on counts 3, 7 and 10. The jury was unable to agree a verdict on count 2, and was discharged. Verdicts of not guilty were returned on the remaining counts.

The essential facts

[4]The factual background to these verdicts has already been summarised in the judgment of Hughes LJ given on 24th May 2007 on a reference by the Attorney General under section 36 of the Criminal Justice Act 1988 (See [2007] EWCA Crim 1318) We shall gratefully adapt his summary for the purposes of the present appeal.[5]The complainant and the appellant met in July 1997. Both were married before and both were divorced. They married in December 1997. In April 1998 the complainant left the appellant for a very short period, and after a short further separation in 2000, they finally separated in November 2004. Following that separation there was a highly charged dispute between them, among other things, about the house. In February 2005, the complainant made her allegations to the police.[6]The defendant’s case was a robust denial. All the allegations were fabricated. Neither anal intercourse, nor an assault occasioning actual bodily harm took place. There was sexual activity between them before and throughout the marriage, but it was always consensual.[7]The counts on which the appellant was convicted all occurred during 1998. Although counts 3 and 7 were specimen counts, two specific incidents occurred during that year which provided independent evidence supportive of the complainant’s. She specifically identified an incident immediately before she left home in April 1998, when she went with her daughter C to stay with her brother in Leeds. After the appellant became violent in the living room downstairs, she went to bed, and he came up to the bedroom in a rage that she had gone to bed without him. He insulted her, sexually assaulting her by twisting her nipples, and seized her throat. Her daughter C shouted, “Mum, are you alright?” The appellant went to the bedroom door and told C to mind her own business. The appellant wanted to have sexual intercourse. She said that she thought that if she let him have sex he would then go to sleep and she could escape. Sexual intercourse took place. She and her daughter left after her husband fell asleep at about 5 am. C gave supporting evidence. She spoke of hearing an argument downstairs, and the appellant following her upstairs, shouting at her. Through the wall between the bedrooms she heard her mother crying, saying “Kevin, stop it, it’s hurting”. So she went to their bedroom door and shouted out to her mother to see whether she was alright. The appellant opened the door, saying, “It’s all your fucking fault”. Her mother told her to go back to bed but she later woke C up and told her that they were leaving. Her mother was shaking and her voice was trembling.[8]On their arrival at Leeds her brother described the complainant as tearful, emotional and upset. She said that she was frightened of the appellant. The appellant followed them to Leeds. Her brother described him that afternoon as placid and calm. He persuaded the complainant to return, but when she left her brother’s home, she was fearful and shaking.[9]The appellant agreed that there had been an argument on this occasion, during which he called his wife a whore and a slut. He denied that there was any violence. He followed the complainant to Leeds to apologise. He denied that the complainant was frightened of him.[10]During the course of the trial the judge rejected an application on the appellant’s behalf to ask her whether, during the incident which took place the night before she fled to Leeds with her daughter, there had been an argument about her having an affair with a sixteen-year-old black boy. This ruling gives rise to the point of statutory construction in relation to section 41.[11]Count 10 alleged a specific incident of violence, which occurred on or shortly before 1st June 1998. An argument began after the appellant collected the complainant from work. He was in an angry mood and accused her of lying to him. He followed her to the downstairs lavatory, lifted his head up as if looking at the ceiling, and then banged his head straight into her face. Her nose was throbbing and bleeding. He asked her if she wanted it again. Later he took her to hospital, where in fear, she made up a story to account for the injury. She was found on examination to have swelling around the bridge of the nose and tenderness. The medical record, based on the complainant’s then explanation, recorded that she had walked into a lamppost three days earlier. It was put to her in cross-examination that her injuries were caused when she collided with a lamppost in a faint. She denied it. She said that the record was untrue.[12]No criticism is advanced against the summing up. The original grounds of appeal suggested that the ruling on application of section 41 was wrong, and that the verdicts of the jury were mutually inconsistent. However we must first address the ground of appeal which called into question whether the jurisdiction under section 41 was available to be exercised at all. The jurisdiction issue.[13]The trial involved allegations of sexual offences contrary to the Sexual Offences Acts 1956 to 1976 (the 1956 Act). The offences therefore occurred before and no complaint was made until after 1st May 2004, when the Sexual Offences Act 2003 (the 2003 Act) came into force and repealed the 1956 Act. The trial took place in February 2007, and proceeded on the common assumption that the restrictions on cross-examination of the complainant imposed by section 41 were in force.[14]The central issue in this appeal is whether the judge was entitled to exercise this jurisdiction at all. The answer to this problem ought to be absolutely plain. Astonishingly, it is not. Literally thousands of cases where this problem might have arisen and been addressed have already been tried, but somehow everyone ‘knew’ that section 41 applied. Certainly that is how the legislation was understood by lawyers and judges. The point now relied on, which was raised for consideration of the court by the office of the Registrar of Criminal Appeals, was taken, as far as we can ascertain, on only one previous occasion in trials where sexual crime was committed before 1st May 2004 and tried after that date. On 5th June 2007, sitting at Birmingham Crown Court, in R v Warner, Judge Morrison QC decided that section 41 had no application to these cases. His decision is unreported. Typically therefore, when the present appeal was launched, the jurisdiction point was not taken. When the case was first listed, the court adjourned for full argument. We are grateful to Mr John Perry QC and to Mr Mark Ellison for their thoughtful analysis of the relevant statutory provisions.[15]The background to section 41 is the gradual realisation that the common law rules relating to the admissibility of evidence and questioning about the character of the complainant in sexual offences were, at the very least, of doubtful validity. Indeed they became the subject of investigation and reform in many parts of the world where common law principles apply. Specific legislation can now be found in Scotland, Canada, New Zealand, Australia, and in some states of the United States, where ‘rape shield’ statutes are in force. In this jurisdiction the Advisory Group on the Law of Rape chaired by Heilbron J (Cmd 6352) described wide dissatisfaction with the common law principles and commented that:
“In contemporary society sexual relationships outside marriage, both steady and of a more casual character, are fairly widespread, and it seems now to be agreed that a woman’s sexual experiences with partners of her own choice, are neither indicative of untruthfulness nor of a general willingness to consent”
. The report itself did not contain a draft Bill, and after a slightly complicated passage through Parliament, the common law rules were amended. The Sexual Offences (Amendment) Act 1976 introduced restrictions on evidence and cross-examination “about any sexual experience of a complainant with a person other than the defendant”. Such evidence and cross-examination required judicial leave, and leave was only to be given if the judge was “satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked”. The provision was limited. For example, it was restricted to offences of rape, and had no application to the complainant’s sexual activities with the defendant.[16]The Home Office Interdepartmental Working Group in Speaking Up for Justice [1998] recommended that some of these protective provisions should be extended. In the result, not without controversy, the protective provisions were revisited and widened by section 41(1) of the 1999 Act. This provided:
“If at a trial a person is charged with a sexual offence, then, except with the leave of the court – (a) No evidence may be adduced, and (b) No question may be asked in cross examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.”
Section 42(1)(c) defined ‘sexual behaviour’ as ‘any sexual behaviour or other sexual experience, whether or not involving an accused or other person, but excluding (except ….) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused’. ‘Sexual offence’ was to be construed in accordance with section 62. By section 62(1) ‘sexual offence’ “…means (a) rape or burglary with intent to rape; (b) an offence under section 2 to 12 and 14 to 17 of the Sexual Offences Act 1956 (unlawful intercourse, indecent assault…);. … ” Accordingly the statutory prohibition against the admission of material relating to the complainant’s sexual behaviour remained as before, subject to the power of the court under section 41(2) to give leave for such evidence or questioning. It is perhaps noteworthy that the protective provisions formerly found in the Sexual Offences (Amendment) Act 1976 were repealed. (a) No evidence may be adduced, and (b) No question may be asked in cross examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.”[17]This was the relevant statutory framework when the appellant committed these offences. They would have applied if the appellant’s trial had taken place at any time on or before 30th April 2004.[18]The 2003 Act made ‘new provision for sexual offences, their prevention and the protection of children from harm from other sexual acts, and for connected purposes’. Indeed Part 1 of the 2003 Act created new sexual offences and redefined and widened others, including rape. Section 139 identified ‘minor and consequential amendments’ contained in Schedule 6. Paragraph 41 amended the 1999 Act in relation to the cross-examination of child witnesses by providing:
“(2) In section 35 (cross examination of child witnesses), in subsection (3) (a), after sub-paragraph (v) insert “or (vi) Part 1 of the Sexual Offences Act 2003;”
. It then continued:
“(3) In section 62 (meaning of ‘sexual offence’ etc), for subsection (1) substitute – ‘(1) in this Part ‘sexual offence’ means any offence under Part 1 of the Sexual Offences Act 2003’”
Section 140 of the 2003 Act made provision for repeal or revocation of a number of statutory provisions, including sections 1 to 7 of the Sexual Offences Act 1956.In the context of these express repeals, the crucial word in the amendment to section 62 of the 1999 Act is ‘substituted’, which on its face suggests that for the purposes of section 41 the former meaning of sexual offence was replaced by the new. However section 41 was not repealed and no relevant minor or consequential amendments were made to its protective features. Precisely the same restrictions on evidence and cross-examination relating to the sexual behaviour of the complainant applied to sexual offences as defined in the 2003 Act as it had to sexual offences as defined in the 1999 Act.[19]Section 141 enabled the Secretary of State to make appropriate orders for transitional provisions. No relevant transitional or other provision relating to a sexual offence as defined prior to 1st May 2004 was made.[20]Mr Perry’s argument was based on a literal reading of the statutory material. He was prepared to accept that Parliament may very well not have intended that section 41 should be disapplied to what he described as ‘old regime’ offences. However he submitted that this consequence was perfectly clear and followed from an obvious reading of the 2003 Act, not least because the definition of the offence of rape differed from rape as previously defined. Read literally, section 41 ceased to apply to offences committed before 1st May 2004, but prosecuted after that date. He relied on

Judge Morrison’s observations in R v Warner that:

“… as a matter of plain reading section 41 does not apply to trials after 1st May 2004 unless it relates to an offence contemplated in Part 1 of the Sexual Offences Act 2003. That is an effect of the legislative failure and my reading of R v A (Prosecutor’s appeal) [2006] 1 CAR 433. A purposive interpretation seems to me only to be possible when there are opposing or ambiguous constructions … here there are no such constructions, merely an unhappy vacuum.”
Although Judge Morrison was tempted to repair the gap left by the failure of the Secretary of State to make appropriate transitional provisions, he was unpersuaded that such workmanship was within the competence of the Crown Court. He concluded that the complainant no longer enjoyed the protection offered by section 41. Mr Perry adopted this reasoning and invited us to conclude that the decision in Warner was right. The vacuum could not be filled by any acceptable method of statutory interpretations.[21]Mr Perry also drew attention to the judgment of Rose LJ in R v A, sometimes referred to as R v C [2005] EWCA Crim 3533 to which Judge Morrison referred in his judgment. The prosecution was unable to prove whether the offences to which the appeal related were committed before or after 1st May 2004. Describing a ‘major’ problem arising from the fact that most of the 2003 Act came into force on 1st May 2004, so that many provisions of the 1956 Act were simultaneously repealed, Rose LJ observed “It is not possible for this Court so to interpret either the 2003 Act, or the Statutory Instrument, in order to provide a transitional regime which Parliament envisaged should be provided by the Secretary of State.” Rejecting submissions on behalf of the Crown based, first, on section 17 of the Interpretation Act 1978, and the strong argument in favour of a ‘purposive approach’, an appeal by the prosecution was under section 58 of the 2003 Act was rejected. The particular problem identified in that case has now been rectified by section 55 of the Violent Crime Reduction Act 2006. Mr Perry suggests that the same approach to the deficiencies arising from the absence of appropriate transitional provisions should be adopted: either fresh legislation or new transitional provisions are required, and it follows from his argument neither this nor any other trial of old regime offences which took or will take place after the implementation of the new provisions could be saved. In passing we notice too, that Mr Ellison suggested, with obvious justification, that the same problems would arise in relation to the jurisdiction to direct one or more of the special measures found in sections 16 to 33 of the 1999 Act which were already in force by 1st May 2004, and continued in force after that date.[22]If Mr Perry’s submissions are right, something extraordinary has happened. Section 41 was in force before 1st May 2004, and remained in force after that date, and was in force at the time of the appellant’s trial, when the complainant gave evidence. Although unamended by paragraph 41 of Schedule 6 of the 2003 Act, and omitted from the repealed or revoked provisions listed in Schedule 7, for the purposes of this group of cases, it ceased to be in force as a result of what the 2003 Act itself described as a ‘minor’ or ‘consequential’ amendment created by the substituted meaning of sexual offence for the purposes of section 62(1) of the 1999 Act. As a matter of practical reality, the consequences are absurd.[23]Let us a consider a defendant charged with the rape of A on 1st April 2004 and a rape of B on 1st June 2004, and tried for both offences in, say, December 2004. The section 41 restriction would apply to any cross-examination of B but its protection would not extend to A, notwithstanding that at the time at which she was raped section 41 was in full force. Consider a defendant tried and convicted of rape before 1st May 2004 where a successful appeal against conviction in May 2005 is ordered to be followed by retrial. At the first trial the section 41 restrictions would have applied. At the new trial they would not. These are not fanciful examples. As Cardoso J once remarked, ‘consequences cannot alter statutes, but may help to fix their meaning’ (Re Rouss (1917) 221 NY 81)[24]Before arriving at the conclusion that the legislative process has produced uncovenanted absurdities, as part of the interpretation process, the question whether such results can possibly have reflected the legislative purpose must be addressed. Different views may be held about what may or may not constitute an absurdity, and if it does, the extent of the absurdity, and the process of statutory interpretation requires the court to consider whether there may be legislative incoherence, which, based on an analysis of the legislative context and structure, produces a result which contradicts the clear intention of Parliament and defeats its own legislative purpose. The principles are conveniently and authoritively summarised in IncoEurope Ltd and others v First choice Distribution (a firm) [2000] 1 WLR 586.[25]In the present case the legislative context is to be found in the sequence of statutes which have governed the prosecution of sexual crimes, beginning no later than the 1956 Act. Unlike R v A, on which Judge Morrison relied, and which was concernedwith what Mr Ellison, in a carefully structured submission described as a “radical extension” of substantive law relating to potential criminal liability, the interpretation process in this appeal is not directed to provisions which have newly criminalised or extended the ambit of criminality to activity which formerly was not or would not otherwise be criminal. Section 41 is procedural or evidential. When enacted it represented a further development of the statutory process by which complainants in sexual cases were given some protection against the deployment at trial of material relating to their sexual history. At the risk of over simplification of a complex problem, and re-echoing the observations of the Advisory Group on the Law of Rape, cross-examination designed to criticise the complainant’s chastity, or her morality, leading to the silent implication that such a woman might be less likely to be truthful, and more likely to consent to sexual activity with the defendant, was made subject to statutory limitations. The limitations apply at the ‘trial’ itself, and section 41 begins with the assumption that such questions will not be asked without the leave of the court. In other words the starting point is that the trial process should exclude such questioning.[26]It is striking that the protective features of section 41 have not been repealed, nor disapplied, nor amended. Rather they have been extended to the newly defined and extended range of offences contained in the 2003 Act. Section 41 remains in full force. The protection of complainants in the forensic process is now an established, unbroken feature of trials involving sexual crime. The process appears to have been seamless. When the 2003 Act was enacted section 41 continued to apply to trials for sexual crimes which took place before the 2003 Act was implemented. Unfortunately the draftsman must have mistakenly proceeded on the basis that the protecting processes would be apt to cover, in the words of section 41, the ‘trial’ of sexual offences, whenever they were committed, and while ensuring that they would apply to sexual offences as extended by the new legislation, he omitted to make express provision to preserve it for the old. The word ‘substitute’ was deployed when the legislation intended to extend rather than restrict or extinguish the important statutory protection provided for complainants. The Parliamentary intention required that, as Mr Perry was inclined to accept when pressed, not the abolition of the statutory protection in this class of case, but its saving.[27]In deference to Mr Perry’s reliance on the absence of transitional provisions, a brief reference to Bennion on Statutory Interpretation (4th Edition 2002) at section 269 is appropriate. This reads: “… where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where the Act fails to include such provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements and, in the light of the interpretive criteria, it considers Parliament to have intended”.[28]The 2003 Act enabled the Secretary of State to make transitional provisions. None were made. The absence of appropriate transitional provisions when there was power make them, compels yet closer reflection about the appropriate interpretation of the legislation within the overall legislative context. It is not decisive of the process of statutory interpretation.[29]Mr Perry’s submission that there is nothing in the legislative structure which expressly directs that section 41 shall apply to trials on or after 1st May 2004 for sexual crimes committed before that date is plainly correct. However, from an analysis of the legislative context, if his submission is right, the consequent ‘vacuum’ was wholly unintended and, contrary to the intention of Parliament that the protection given to complainants by section 41 should extend equally to all complainants, whenever they were victims of sexual offences, whether as defined in section 62(1) of the 1999 Act as originally enacted, or as substituted by paragraph 41 of Schedule 6 of the 2003 Act In summary, therefore, the examples of the consequences of Mr Perry’s submission, as explained earlier in this judgment, are indeed properly described as absurdities not simply in some sense of generalised dismay, but within the legislative context itself. The vacuum could readily have been filled by a short saving provision stating expressly what was plainly implied or understood, that after the 2003 Act came into force section 41 would continue to apply to trials of offences which took place before that date. Another solution would have been for the language of paragraph 41(3) of Schedule 6 of the 2003 Act to have mirrored paragraph 41(2) by making provision for the insertion of a reference to Part 1 of the sexual Offences Act 2003. That said, the absence of such provision does not lead us to conclude that legislation expressly designed to make new provisions for the prevention of sexual offences somehow disapplied the protective provisions of the 1999 Act to trials involving this particular group of complainants. The virtually universally discredited common law rules relating to cross-examination in this class of case were not resuscitated merely because of an adventitious discrepancy between the date when the offences were committed, and the trial.[30]Despite its careful reasoning, we are unable to follow the judgment of Judge Morrison in Warner. In our judgment, section 41 applied to this trial. We shall simply add that the very fact that it was open to Mr Perry to make the submission that he did provides yet another example of the accuracy of Rose LJ’s comment in R v A that:
“If a history of criminal legislation ever comes to be written it is unlikely that the 2003 Act will be identified as a year of exemplary skill in the annals of Parliamentary drafting”
[31]When preparing for this appeal Mr Ellison considered the possible application of section 16 of the Interpretation Act 1978 (the 1978 Act). For purposes relevant to this appeal, this provides:
“Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment; … (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced …. as if the repealing Act had not been passed”
. The question is whether section 62 of the 2003 Act must be read subject to section 16 of the 1978 Act in the sense that it operates to save the complainant from cross-examination about her sexual behaviour. The difficulty is that the protection offered by section 41 is addressing the plight of the complainant in the course of the trial, but not before, and is in any event liable to be disapplied in whole or in part if the trial judge agrees that in accordance with the statutory criteria, as interpreted in among other decisions, the House of Lords in R v A(No 2) [2002] 1 AC 45, such cross-examination should be allowed. In the present case, no complaint was made until after the 2003 Act came into force.[32]Considering the predecessor to section 16, Atkin LJ stated that it was “obvious that that provision was not intended to preserve the abstract rights conferred by the repealed Act … it only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute”. (Hamilton Gell v White [1922] 2KB 422.) In Abbott v Minister of Lands [1895] AC 425 it was held that a mere right existing at the date of a repealing statute to take advantage of a repealed enactment is not an accrued “right” to which the same provision could apply. “… (assuming it is properly to be so called) existing the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be described as a ‘right accrued’ within the meaning of the enactment”. (Per Lord Hershell L.C. at 431).[33]The effect of later authorities is that ‘right’ or ‘privilege’ to which section 16(c) applies even if they are contingent or inchoate. (See Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541: Pluwa v Chief Adjudication Officer [1995] 1 AC 249. The effect of the authorities were summarised by Simon Brown LJ (as he then was) in Chief Adjudication Officer v Maguire [1999] 1 WLR 1778:
“A mere hope or expectation of acquiring a right is insufficient. An entitlement, however, even if inchoate or contingent, suffices. The fact that further steps may still be necessary to prove that the entitlement existed before repeal, or to prove its true extent, does not preclude it being regarded as a right.”
[34]Mr Ellison submitted that in view of the absence of any complaint prior to 1st May 2004, and given that the protective features of section 41 of the 1999 Act do not begin to arise for consideration until the trial itself, the complainant could not accurately be described as enjoying an inchoate or contingent right or privilege to the application of an Act which was not engaged before, if Mr Perry is right (and we have decided that he is wrong) section 41 was disapplied to her case. In relation to cases where the first complaint of a sexual crime which took place before 1st May 2004 was made after that date, we are inclined to agree with Mr Ellison, but need not finally decide the point. In essence, we doubt whether a possible right or privilege to protection from what would otherwise be the normal trial processes can properly be described as contingent or inchoate before the very first step in the process which might culminate in the trial has been taken. We were not asked to consider whether the complainant’s Convention Rights were or may have been engaged, and in view of our conclusion, it is unnecessary to do so.

The ruling under section 41

[35]We must come to Judge Glenn’s ruling. Following examination in chief of the complainant, counsel who then appeared on behalf of the appellant applied for leave to cross-examine her about six areas of her alleged sexual activities. Some were abandoned in argument. The judge permitted cross-examination to the effect that she had on three previous occasions made false accusations. However he refused to allow her to be cross-examined about an argument arising from an alleged affair she had with a sixteen-year-old boy. The judge did not believe that “the purpose of that proposed cross-examination is anything other than to attack this woman’s credibility”. He therefore rejected this application. Mr Perry suggested that this decision caused an unfairness. Counsel should have been permitted to put to the complainant that her flight to Leeds was precipitated by an argument arising from her affair with this boy. However it was common ground that an argument had indeed preceded her flight to Leeds, assertions by the appellant about its cause, even if accepted, did not realistically provide an explanation for her flight. It may indeed have explained his violence (to his disadvantage) but it was not relevant to the question whether he had sexually assaulted her. The issue was whether the account of the appellant’s behaviour on the night before she left, as described by the complainant, and to some extent supported by C, was accurate. It was not explained to the judge, nor to us, how even if the row began because of this affair, the appellant was assisted on the issue whether, during 1998, the complainant’s asserted unwillingness to have sexual relations with him was overborne. In our view the judge’s decision was right. In the words of section 41(4) it was entirely reasonable for him to assume that the purpose or the main purpose for which this issue would be raised would be to establish or ellicit material with which to impugn the “credibility of the complainant as a witness.”

Inconsistent Verdicts

[36]Mr Perry suggested that there was no logical consistency between the guilty verdicts on counts 3 and 7 on the one hand, and the not guilty verdicts on the remaining counts. He submitted that the jury rejected the complainant’s assertion that throughout the marriage she was an unwilling participant in the sexual activity which took place between them, and that there was an occasion of anal rape. Accordingly, there was nothing in the evidence from which the jury was entitled to reject the complainant’s evidence about the years 1997, 1999 and 2000, yet to accept her evidence, at least in part, in relation to 1998.[37]Mr Drew for the Crown submitted that, given the clear direction that they should return separate verdicts on each count, the jury’s conclusion was entirely understandable. It may be that they were not prepared to find that all the sexual activity within the courtship and marriage took place without the complainant’s consent. However there was independent evidence which tended to support the allegations that during 1998, the complainant was subjected to violence by the appellant, and in sexual matters treated in an overbearing and degrading way. C heard and described an incident in the bedroom. The hospital records establish the fact of an injury, which the jury were satisfied resulted from the appellant’s violent actions.[38]The jury was indeed directed to consider the case in each count separately. The prosecution and defence cases on each count were carefully explained. The judge invited the jury to consider the evidence of friends and relatives on both sides to see whether that potential supporting evidence might assist them to a conclusion about the true nature of the relationship. In our judgment it was open to the jury to conclude that while they could not be sure that the sexual relationship was non-consensual from start to finish, they could indeed be sure that it was non-consensual during 1998 if they accepted C’s evidence, and drew their own conclusions about the circumstances which the complainant went to seek treatment in hospital.[39]The verdicts of a jury are not to be treated as inconsistent simply because the jury is sure about some parts of a complainant’s evidence, but unable to be sure to the requisite standard about others. Here the jury was sure about the reliability of the complainant’s evidence, where it was provided with a measure of independent support, but unprepared to be sure where it was not. This was an entirely rational approach, properly seeking to give the benefit of any doubt to the defendant. The verdicts are not logically inconsistent.[40]This appeal is dismissed.

Cited in 5 later judgments