Coates, R v Rev 1

A previous inconsistent statement may satisfy the statutory conditions for admissibility, but it must not be used as the basis for conviction where overall fairness requires its exclusion. This is especially so where the accused had to deploy that statement to demonstrate the unreliability of the complainant’s later, disowned account.

If a tribunal is permitted to consider materially inconsistent accounts, it requires full directions on the evidential consequences. It must be sure that any earlier account is true despite the witness’s contrary oral evidence, and must address differences bearing on consent, belief and intoxication.

The appellant was convicted of rape by a Court-Martial at HMS Nelson on 9 March 2007. The complainant made four accounts of the incident. Her first account described submission after kissing and attempting to say no. Her later, post-therapy account alleged continuous physical resistance.

The Crown advanced the later account at trial. Expert evidence suggested that the first account was more likely to be accurate, although it could not establish that it was accurate. The Board rejected the later account but convicted on the first statement and the immediate complaints, although the complainant had disowned that statement in her oral evidence.

The appeal concerned the admissibility and fair use of the first statement, and the adequacy of the directions given to the Board.

1. Appeal allowed; conviction quashed. The conviction was unsafe.
2. The complainant’s first statement was inconsistent with her oral evidence and was not confirmed by her. It was therefore not admissible through section 120(4)(b) of the Criminal Justice Act 2003. Although it met the literal conditions of section 119(1), the court’s continuing discretion under section 78 of the Police and Criminal Evidence Act 1984 governed whether its use was fair.
3. Once the Crown was permitted to advance the complainant’s post-therapy account, the defence had to rely on the first statement in cross-examination to expose the unreliability of that account. The statement was thereby placed before the Board as a consequence of the Crown’s case. In those circumstances, and because the complainant disowned every pre-therapy account, fairness required that the first statement should not have been treated as admissible evidence capable by itself of founding a rape conviction.
4. There was an independent defect in the directions. If the first statement were left as admissible evidence, the Board had to be directed to decide separately whether it could be sure of its truth despite the complainant’s contrary testimony. It also required clear guidance that the difference between submission and continuous resistance could bear on the appellant’s state of mind, the effect of alcohol, and whether apparent consent or subsequent regret was possible.
5. The directions given did not fully address those matters. The Board’s rejection of the post-therapy evidence could not cure the unfairness of convicting on an account which the complainant herself had repudiated.

• Court of Appeal (Criminal Division). Allowed the appeal and quashed the conviction: [2007] EWCA Crim 1471.
• Court-Martial at HMS Nelson. Convicted the appellant of rape on 9 March 2007.