Spooner v R

Evidence of a complainant’s contemporaneous complaint is admissible where it is sufficiently consistent with the complainant’s trial evidence to be capable of supporting credibility. The complaint need not set out every ingredient or the full extent of the alleged sexual conduct. It will usually be enough that it describes material and relevant unlawful sexual conduct by the defendant.

Differences between the complaint and trial evidence generally affect weight, not admissibility, unless the accounts are wholly inconsistent. The jury must receive a clear direction on the limited use of the evidence and, where material differences are apparent, on their nature and significance.

The appellant was convicted at Maidstone Crown Court of specimen counts of indecent assault, buggery, rape and gross indecency against his stepdaughter. He received a sentence of 12 years’ imprisonment.

He appealed against conviction on the sole ground that evidence of a complaint made by the complainant to a school friend should either have been excluded or more fully qualified in the summing up. The complaint described touching, whereas the complainant’s trial evidence included penetrative sexual assaults. The central issues were the degree of consistency required for recent-complaint evidence and the adequacy of the judge’s direction.

1. Appeal allowed. The conviction was unsafe because the judge’s direction on the complaint evidence amounted to a material misdirection.

2. Evidence of a contemporaneous complaint is not evidence of the facts alleged. Its legitimate function is to assist the jury in assessing whether the complainant’s conduct and complaint were consistent with the account given on oath, and thus capable of supporting credibility. Applying the established principles in R v Lillyman [1896] 2 QBD 167 and later authorities, admissibility depends on whether the complaint is sufficiently consistent to be capable of providing that support.

3. The complaint need not disclose the ingredients of the charged offence or the full extent of the unlawful sexual conduct alleged at trial. It will usually be enough that it identifies material and relevant unlawful sexual conduct by the defendant. A complaint limited to less serious sexual conduct may therefore be capable of supporting evidence of more serious sexual conduct. Differences are ordinarily for the jury to assess. Only a complaint wholly inconsistent with the trial account is irrelevant for this purpose.

4. Where complaint evidence is admitted, the judge must explain its limited use. If there is an obvious inconsistency, the judge should identify its extent and significance, draw attention to any explanation for it, and leave the jury to decide what weight, if any, it gives to the evidence.

5. Here, the friend’s evidence was admissible, including as evidence capable of supporting the complainant’s credibility in respect of the more serious allegations. However, the judge did not contrast the friend’s account of touching with the complainant’s evidence of digital penetration and rape, or identify the limited extent of their consistency. Given the significance of that evidence to credibility, the court could not conclude that the convictions were safe. The Crown’s application for a retrial was reserved for consideration when judgment was handed down.

The court also expressed obiter doubt that evidence of the mere fact of a complaint, without its terms, will ordinarily be admissible, save perhaps in unusual circumstances and with a very careful direction.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction because the summing-up contained a material misdirection on the use of complaint evidence.
• Crown Court at Maidstone: The appellant was convicted by a jury on 6 June 2002 of specimen sexual offences and sentenced to 12 years’ imprisonment.