Winter, R v

Questions framed as challenges to a complainant’s prior statement remain questions about sexual behaviour where their probative force depends on establishing a sexual relationship with another person. They therefore fall within section 41 of the Youth Justice and Criminal Evidence Act 1999. Evidence of a relationship with a third party cannot properly support an inference that the complainant was more likely to consent to sexual activity with the accused, or that the accused reasonably believed in consent.

A conviction is not unsafe merely because the jury receive no express direction that genuine distress may have another cause. Nor are verdicts inconsistent unless they are logically inconsistent. Fresh evidence may be refused where it was available at trial and is merely confirmatory.

The appellant was acquitted of rape but convicted at his second trial at Mold Crown Court of assault by digital penetration. He was sentenced to four years’ imprisonment.

He appealed principally against the exclusion, under section 41 of the Youth Justice and Criminal Evidence Act 1999, of proposed cross-examination about the complainant’s relationship with another man. He contended that the evidence bore on her credibility, his belief in consent, bruising, and the accuracy of the picture given of her relationship with her partner.

He also challenged the direction on distress, alleged inconsistency between the acquittal and conviction, and sought to adduce fresh evidence of flirtatious behaviour.

1. Appeal dismissed. The trial judge correctly refused leave to cross-examine the complainant about her relationship with another man. The proposed questions necessarily sought to establish that sexual relationship. They were therefore questions about her sexual behaviour within section 41 of the Youth Justice and Criminal Evidence Act 1999.

2. The complainant’s statement that her relationship with her partner was close, loving and sexually healthy was not rendered false merely because she also had another relationship. In any event, the omission was corrected within 24 hours and was insignificant. The proposed questioning was directed to credibility and was excluded by section 41(4).

3. The alleged statement to the appellant that the complainant was having an affair could not be severed realistically from the existence of that affair. It concerned a relationship with a man other than the appellant. It added little to the permitted evidence of flirtation between the appellant and complainant. Its suggested use as a “green light” invited precisely the forbidden inference that sexual behaviour with one man makes consent to sexual activity with another more likely. The court applied the distinction noted in R v Barton, (1987) 85 CARS 5, between believing that a woman consents and believing that she will consent if advances are made.

4. The issue of belief in consent could not be separated from actual consent for section 41(3)(a). Nor did evidence of the complainant’s relationship with her partner require rebuttal or explanation under section 41(5). Exclusion of the material did not deprive the appellant of a fair trial under Article 6 of the European Convention.

5. The direction on distress was adequate. Although a direction concerning alternative causes of distress can be desirable, it is not mandatory. The verdicts were logically consistent: the appellant denied penile penetration but admitted digital penetration, leaving consent as the issue on the latter count.

6. The application to admit KM’s evidence was dismissed. The evidence was available at trial and merely confirmed evidence already given. The relevant considerations in section 23(2)(b) and (d) of the Criminal Appeal Act 1968 were not fulfilled.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction in [2008] EWCA Crim 3.
• Mold Crown Court: At the appellant’s second trial, acquitted him of rape and convicted him of assault by digital penetration; sentenced him to four years’ imprisonment.