W, R. v

A summing-up must fairly and intelligibly present the substantial features of the defence case. Although the precise date alleged may not be legally material within the period charged, a complainant’s detailed account of timing and surrounding events may be central to credibility and must not be withdrawn from the jury’s consideration.

Where a child complainant’s evidence is repeated after retirement, the jury must be warned against giving it disproportionate weight. The judge should restore a fair balance by reminding the jury of cross-examination, re-examination and, where needed, relevant defence evidence. Material failures in those respects may render convictions unsafe.

At a retrial in the Crown Court at Leeds, W was convicted by a 10–2 majority of rape and assault by penetration of his 14-year-old step-daughter. The first jury had been unable to agree.

The defence contended that the complainant’s account of the date and circumstances of the alleged rape could not be reconciled with the available Sundays, particularly 15 July 2007. It also relied on a suggested motive arising from the discovery of a sexual text message and on allegedly inconsistent explanations for delayed disclosure.

W appealed on the basis that the judge’s summing-up failed fairly to present those issues. A further permitted ground concerned the failure, after replaying the complainant’s video evidence to the jury, to restore a fair balance by appropriate warnings and reminders.

1. Appeal allowed. The convictions on both counts were unsafe and were quashed.

2. The judge materially misdirected the jury on the defence challenge to the complainant’s credibility. It was correct that the prosecution needed to prove only that the rape occurred within the period charged. However, the complainant’s account that it occurred on a Sunday, after which her father collected her and took her to school the next day, was a factual circumstance on which the defence relied to show that her account could not be true. The direction that those details did not matter effectively removed that challenge from the jury.

3. The summing-up also failed fairly to put the defence case on motive. The discovery of the text message was relied on as explaining both anger towards the appellant and fear of being sent away from her mother. The judge instead treated its relevance only as bearing on the medical history. She also misstated the alleged inconsistency in the complainant’s explanations for delay, by treating them as concerning periods before and after the alleged rape rather than different responses after it. The final formulation of the defence case was inadequate.

4. Following R v Rawlings; R v Broadbent [1995] 2 Cr App R 222 and R v McQuiston [1998] 1 Cr App R 139, repetition of a child complainant’s evidence after retirement required a warning against disproportionate weight and a fair reminder of the other relevant evidence. The judge gave no such warning after replaying the video and did not adequately remind the jury of the defence case. She had not exercised an informed discretion directed to maintaining fairness.

5. The errors cumulatively undermined the safety of the rape conviction. As the two counts were cross-supportive, the assault-by-penetration conviction was also unsafe.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed both convictions: [2011] EWCA Crim 1142.
• Crown Court at Leeds — at a retrial, W was convicted by a 10–2 majority of rape and assault by penetration. The first trial jury had been unable to agree.