Ali, R v

A witness’s previous consistent statement is generally inadmissible to corroborate that witness, even where cross-examination has exposed an earlier inconsistency. Cross-examination showing inconsistency does not create a general fourth exception to that rule.

A judge retains a residual discretion to permit re-examination where it is necessary to answer an allegation of recent fabrication or to correct a positively misleading impression created by cross-examination. The discretion does not permit evidence merely to give the jury a more balanced account of a previous statement.

An erroneous admission of consistent evidence will not render a conviction unsafe where the jury received adequate directions and the appellate court is satisfied that the verdicts remain safe.

The appellant was convicted at Portsmouth Crown Court of four indecent assaults. Counts 1 to 3 concerned an 11-year-old girl and Count 4 concerned her mother. He received concurrent terms of two years on Counts 1 to 3 and a consecutive term of one year on Count 4.

During the trial, defence counsel cross-examined the mother about inconsistencies between the girl’s complaint to her and the girl’s evidence. The trial judge permitted the prosecution to re-examine the mother about consistent parts of that complaint. The appellant appealed against conviction on the ground that this impermissibly bolstered the girl’s credibility. He also appealed against sentence as manifestly excessive.

1. The appeal against conviction was dismissed. The trial judge erred in allowing re-examination about the consistent parts of the girl’s earlier complaint. The general rule prevents proof of a witness’s earlier consistent statement merely to corroborate that witness, including after cross-examination has shown an inconsistency.

2. The court followed R v Beattie [1989] 89 Cr App R 302: showing inconsistencies in cross-examination does not create a general fourth exception to that rule. The recognised exceptions did not apply. In particular, the defence had not alleged, expressly or by implication, that the account was a recent fabrication.

3. The court held that a judge nevertheless has a residual discretion, in the interests of justice, to permit re-examination where the nature or use of an inconsistent statement makes this necessary. That discretion may answer an allegation of recent fabrication or correct a jury’s positively misleading impression of an earlier statement. It may also operate through section 5 of the Criminal Procedure Act 1865 where applicable. It did not apply here, because the defence had accurately elicited admitted inconsistencies and had not created a misleading evidential position.

4. The erroneous ruling did not make the convictions unsafe. The judge clearly directed that the complaint was not evidence of what occurred, identified the inconsistencies, and required separate consideration of each count. The jury’s verdicts, including its acceptance of the mother’s evidence on Count 4, supported the conclusion that the convictions remained safe.

5. The appeal against sentence was allowed. The three-year total sentence was manifestly excessive when compared with the more serious authorities involving abuse of trust. The sentences were quashed and replaced with concurrent terms of 15 months on Counts 1 to 3 and a consecutive term of three months on Count 4, making 18 months’ imprisonment in total.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed. Appeal against sentence allowed; the total term was reduced from three years to 18 months’ imprisonment.
• Portsmouth Crown Court: The appellant was convicted by a jury of four indecent assaults and sentenced to three years’ imprisonment in total.