Gjoni v R

Under Youth Justice and Criminal Evidence Act 1999, evidence of a complainant’s sexual behaviour may be relevant to an accused’s belief in consent, although belief is not itself an issue of consent. The court must nevertheless decide whether excluding the evidence might make a jury’s conclusion unsafe. Evidence of prior intercourse with another person will not ordinarily justify a belief in consent after an express rejection, particularly where it invites stereotypical reasoning about sexual willingness.

The relevant belief is the accused’s belief when intercourse occurs. Where the competing accounts of the act leave no factual basis for an intermediate mistaken-belief case, earlier assurances may be immaterial to verdict safety. A guest’s presence in an adult victim’s home does not alone create a position of trust for sentencing.

The appellant was convicted unanimously at Snaresbrook Crown Court of rape and sentenced to nine years’ imprisonment. His defence was that the complainant had willingly invited him into her bedroom and that he believed she would consent.

Before the alleged rape, another man, Lee, had made assurances to the appellant. The appellant sought to give the full content of their conversations, including Lee’s assertion that he had previously had intercourse with the complainant. The trial judge allowed evidence of the assurances but excluded their sexual detail under Youth Justice and Criminal Evidence Act 1999, section 41.

On appeal, the appellant challenged that ruling, the absence of a further jury direction, and the safety of the conviction. He also challenged the sentencing findings of breach of trust and planning, and contended that the sentence was manifestly excessive.

1. Both appeals were dismissed. The conviction was safe and the nine-year sentence was not manifestly excessive.

2. On an application under section 41 of the Youth Justice and Criminal Evidence Act 1999, the judge must ask whether the evidence concerns sexual behaviour; whether it concerns an issue other than consent; whether that is a relevant issue; whether its purpose is to impugn the complainant’s credibility; and whether exclusion might render unsafe a jury conclusion on that issue. An accused’s belief in consent is, by section 42(1)(b), an issue other than whether the complainant in fact consented.

3. The appellant’s state of mind on entering the bedroom was a relevant issue. The assurances from Lee, made in Kadena’s presence, were therefore capable of some probative value and were properly admitted. However, the full content of the conversations was unnecessary. Knowledge that Lee claimed to have previously had intercourse with the complainant could not rationally justify a belief that she would consent to intercourse with the appellant after rejecting his advances. Its admission would invite the prohibited inference that consent to one comparative stranger at one time implies willingness to another later.

4. The decisive question was the appellant’s belief at the time of intercourse. On his account the complainant actively welcomed him; on her account she was asleep and he forced intercourse despite her resistance. Those accounts left no intermediate factual basis on which an honest and reasonable, but mistaken, belief could rest. The excluded material could not have affected the safety of the verdict, and no additional jury direction was required.

5. For sentence, the appellant was not in a position of trust merely because he was a guest in the complainant’s home. The judge was also not entitled to find a pre-planned rape. Nevertheless, the accepted facts showed grave aggravation: the appellant exploited the complainant while she slept, continued in the presence of two complicit men, and raped her in her own home. Those features properly placed the offence in Category 2, and the sentence remained appropriate.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 691, dismissed the appeals against conviction and sentence.
• Snaresbrook Crown Court: The appellant was convicted of rape by a unanimous jury verdict on 4 December 2012 and sentenced to nine years’ imprisonment on 12 December 2012.