Gill, R v

Evidence of a complainant’s recent complaint may support the complainant’s credibility, including through the complaint’s contents, but it is not independent evidence that the alleged events occurred. The jury must be directed clearly on that limited use. The need for a direction is especially acute where the complaint is very recent and the case turns on the opposing accounts of the complainant and defendant. Where no adequate direction is given in such a case, and there is no other material support for the prosecution account, the appellate court may be unable to regard the conviction as safe.

The appellant was convicted of rape at Portsmouth Crown Court and sentenced to six years’ imprisonment. The issue at trial was whether penetrative intercourse had occurred without the complainant’s consent.

The complainant gave evidence that, shortly after the alleged rape, she made text and telephone complaints to friends, was distressed, and went to the police. There was no forensic evidence supporting penetration. The defence case was that there had been consensual sexual activity but no penetration.

On appeal, the appellant contended that the judge had failed to direct the jury on the limited evidential use of the complainant’s recent complaints.

1. Appeal allowed. The conviction was quashed because the trial judge should have directed the jury on the limited use of the complainant’s complaint evidence.

2. Complaint evidence was admissible as evidence capable of supporting the complainant’s account and credibility, provided it was recent. It was not evidence of the truth of the alleged rape and could not independently prove that the complaint was true. The jury therefore needed to be told both that they could consider the complaint when assessing credibility and that the recipient had not witnessed the alleged events.

3. The Crown’s submission that an exceptionally prompt complaint should simply be treated as part of the facts was rejected. The court held that the greater the immediacy of the complaint, the more important it was to give the limiting direction.

4. The absence of a direction rendered the conviction unsafe. The case depended wholly on the credibility of the complainant and the appellant. There was no forensic or other material support for the prosecution case. The court could not be confident that the jury had understood the unusual and restricted status of the complaint evidence.

5. A retrial was in the public interest. The court directed that a fresh indictment be preferred, that the appellant be re-arraigned within two months, and that the retrial take place as soon as reasonably practicable. Bail was granted on conditions of residence, non-contact with civilian prosecution witnesses, and surrender to the Crown Court.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the conviction, and ordered a retrial: [2004] EWCA Crim 3022.

• Portsmouth Crown Court: On 28 July 2003, convicted the appellant of rape and sentenced him to six years’ imprisonment.