Garaxo, R. v

Questions about a complainant’s allegedly false earlier complaints of sexual assault are ordinarily directed to past statements, rather than sexual behaviour. They may be excluded under Youth Justice and Criminal Evidence Act 1999 where the defence lacks a proper evidential basis that the earlier statement was made and was untrue. Where the material is capable of permitting a jury to infer that an earlier complaint was fabricated, the defence should be allowed to cross-examine, subject to judicial control of its proper scope.

Evidence introduced to show that an accused lied in interview requires the usual Lucas direction. If it is not admitted on that basis, it must be relevant on some other proper basis. Errors on either issue may render convictions unsafe.

The appellant was convicted at Blackfriars Crown Court of sexual assault and common assault arising from an encounter with a woman whom he had met earlier that day. He was sentenced to consecutive terms totalling two years and two months’ imprisonment, and the judge recommended deportation.

On appeal, the appellant challenged the refusal to permit cross-examination about two earlier complaints allegedly made by the complainant against other men. He also challenged the admission of evidence that he had previously complained of being robbed by a prostitute. The central issues were whether the earlier complaints had a sufficient evidential basis for cross-examination, and whether the other evidence was relevant or required a lies direction.

1. Appeal allowed. The convictions were unsafe and were quashed.

2. The court applied the principles in R v T & H [2002] 1 WLR 632. Questions about previous allegedly false complaints of sexual assault normally concern the complainant’s earlier statements, rather than sexual behaviour. However, the defence must have a proper evidential basis for asserting both that the earlier statement was made and that it was untrue. Without that foundation, the proposed questions fall within section 41 of the Youth Justice and Criminal Evidence Act 1999.

3. The disclosed records provided a sufficient basis for cross-examination in this case. The reference in one complaint to obtaining a crime reference number for social services was capable of suggesting an improper motive. The circumstances of the other complaint, including the complainant’s refusal to assist the police while under the influence of drugs, were capable of supporting an inference of untruthfulness. The jury, not the judge, should have been permitted to assess those matters. The trial judge could control the questioning to prevent abuse.

4. The evidence of the appellant’s previous complaint about a prostitute could only properly have been admitted to establish that his interview account was a lie. On that basis, the judge should have given the usual Lucas direction. If it was not admitted as lie evidence, it had no relevant evidential purpose. Its admission without that direction was an additional reason why the verdicts were unsafe.

5. The court ordered a retrial. A fresh indictment was to be preferred and the appellant arraigned at Blackfriars Crown Court within two months. Any application for bail was left to that court.

• Court of Appeal (Criminal Division) — in [2005] EWCA Crim 1170, allowed the appeal, quashed both convictions, and ordered a retrial.
• Blackfriars Crown Court — convicted the appellant on 21 October 2004 of sexual assault and common assault, and sentenced him on 29 October 2004 to two years’ imprisonment plus two consecutive months. The judge also recommended deportation.