Tobin, R. v

In a sexual-offence trial, the rule against oath-helping does not invariably exclude limited prosecution evidence about a complainant’s background or characteristics. Evidence is inadmissible if tendered merely to show that the complainant is generally truthful or unlikely to have acted as alleged.

However, such evidence may be admitted where it is relevant to a live issue and its incidental effect is to bolster credibility. The court must assess relevance and fairness in the particular trial. In sexual cases, where the events were private and credibility is central, the distinction between evidence going to credit and evidence going to the issue may be slight.

The appellant was convicted at Chester Crown Court of two indecent assaults upon a 16-year-old complainant and received concurrent sentences of 12 months’ imprisonment. He appealed against conviction on the ground that the prosecution had wrongly called evidence from the complainant’s mother about the complainant’s character, background and post-incident condition.

He also renewed applications for leave to appeal on grounds that the trial judge should have adjourned the case to permit enquiries into the complainant’s character, and that the judge’s questioning of him amounted to an improper entry into the arena. The central issue was whether the mother’s limited evidence was impermissible oath-helping or admissible evidence relevant to the disputed account of the sexual conduct.

1. The appeal was dismissed. The trial was fair and the conviction was safe. Leave to appeal was refused on the second and third grounds.
2. The prosecution could not adduce evidence merely to establish that the complainant was not the type of person who would behave as the appellant alleged. That general approach could amount to oath-helping and could invite evidence of a prosecution witness’s lack of propensity whenever unacceptable conduct was alleged. The point was particularly weak here because the complainant was admittedly affected by alcohol, so sober behaviour could be an unreliable guide to behaviour while intoxicated.
3. Nevertheless, in sexual cases the distinction between evidence going to credibility and evidence going to a live issue may be very slight. The court approved the approach in R v Funderburk [1990] 1 WLR 587 and R v Amado-Taylor 2001 EWCA Crim 1898: evidence about a complainant’s background or characteristics is not automatically excluded merely because it may also bolster credibility. Admissibility depends upon relevance and fairness in the circumstances of the particular trial.
4. Here, the appellant’s character had been placed fully before the jury and the contest turned upon the respective accounts of the complainant and appellant. The mother’s evidence about the complainant’s family relations, schooling, politeness, quietness, respect for others and recent departure from home was limited. It did not make the trial unfair or offend the rule against oath-helping. The evidence of the complainant’s condition after the incident was also fairly admissible.
5. No adjournment was required. The complainant’s interview had been disclosed before trial, yet the defence had neither sought deletion of the relevant material nor sought disclosure of medical records or directions. The judge’s later, relevant questions to the appellant were not an improper entry into the arena.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction and refused renewed leave to appeal on two further grounds.
• Crown Court at Chester On 16 August 2002, the appellant was convicted by a jury of two counts of indecent assault. On 13 September 2002, he received concurrent sentences of 12 months’ imprisonment.