Wayne, R. v

Leave to cross-examine a complainant about earlier sexual behaviour under section 41(3)(c) depends on a sufficiently specific and non-coincidental similarity to the behaviour in issue. It may properly be refused where the proposed material instead concerns general sexual behaviour or chiefly impugns credibility.

Previous convictions for violence may be admissible to prove a propensity relevant to identifying the aggressor, even though they are not convictions for sexual offending. Differences between the previous violence and the charged conduct ordinarily affect weight and jury use, rather than relevance. Relevant evidence must nevertheless be excluded if its admission would adversely affect trial fairness.

The appellant was convicted at Southwark Crown Court of false imprisonment, assault occasioning actual bodily harm, and one count of rape. He was acquitted of a further rape count and received eight years’ imprisonment for the rape, with concurrent sentences for the other offences.

He appealed on two grounds. First, the trial judge had refused leave under Youth Justice and Criminal Evidence Act 1999, section 41, to cross-examine the complainant about references in medical records to risky sexual behaviour and excessive drinking. Secondly, the judge had admitted evidence of the appellant’s previous convictions for violence as bad-character evidence.

The central issues were whether the proposed sexual-history questioning met the statutory similarity requirement and whether the previous convictions were relevant and fair evidence of a propensity to violence.

1. Appeal dismissed. The court held that the conviction was safe.
2. The trial judge was entitled to refuse leave under section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999. The asserted similarity between earlier references to risky sexual behaviour and the alleged consensual intercourse with the appellant was insufficient. The proposed questioning risked introducing the complainant’s general sexual behaviour rather than a genuinely similar specific occurrence. This evaluative conclusion fell within the trial judge’s permitted margin of judgment.
3. The ruling was also sustainable under section 41(4). The appellant had not investigated whether the nurse or general practitioner would contradict the complainant’s explanation of the records. He could not call other evidence on the point. In those circumstances, questioning based on the records would principally have impugned the complainant’s credibility. An application that might have followed her evidence about her lifestyle was not made at trial and could not be raised for the first time on appeal.
4. The judge correctly admitted the prior violent convictions under sections 101(1)(d) and 103(1)(a) of the Criminal Justice Act 2003. Whether the appellant had a propensity to violence was relevant to the live issue of who initiated the violence. That issue bore on both the assault and rape counts, since unlawful violence could affect consent. The absence of previous sexual convictions and the fact that many earlier assaults were on police officers went to weight and the permitted use of the evidence, not its relevance. The convictions showed a consistent pattern and their admission did not adversely affect fairness under section 101(3).
5. The judge’s clear limiting direction enabled the jury to use the evidence only on the aggressor issue and reminded it that the appellant had no sexual convictions. The court therefore found no basis to interfere with the fact-specific admissibility ruling.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction.
• Crown Court at Southwark The appellant was convicted of false imprisonment, assault occasioning actual bodily harm, and one count of rape. The citation of the Crown Court decision was not stated in the judgment.