AS v R.

A trial judge should leave alleged inconsistencies in a complainant’s evidence to the jury unless, taking the prosecution case at its highest and allowing for a proper direction, no reasonable jury could properly convict.

Where a jury acquits on specific allegations but convicts on unparticularised sample counts, the convictions are unsafe if the verdicts cannot plausibly be reconciled on the evidence. In such a case, the jury may require an express warning about the effect of acquittals on the specific counts when considering the sample counts.

The appellant was convicted at Leicester Crown Court of two sample counts of raping his wife. The jury acquitted him of all the specifically particularised sexual counts, including allegations concerning identified occasions and locations.

He appealed against conviction, contending first that the judge should have stopped the case because of inconsistencies in the complainant’s evidence. Secondly, he contended that the convictions on the sample counts were illogically inconsistent with the acquittals and unsafe.

The proceedings were subject to the reporting restrictions in the Sexual Offences (Amendment) Act 1992. The central issue was whether the convictions on broadly framed sample counts could safely stand after the jury had acquitted on the specific allegations.

1. Appeal allowed. The court rejected the submission that there was no case to answer. Applying the second limb of R v Galbraith 73 Cr.App.R 124, the inconsistencies and later additions in the complainant’s evidence were capable of bearing on credibility and reliability. Those matters were for the jury. The judge’s direction correctly required the jury to assess whether any inconsistency undermined the essential truth of the account on each count.

2. The convictions on the sample counts were nevertheless unsafe. The proper approach to allegedly inconsistent verdicts is whether fair-minded ordinary jurors could plausibly have reached them by a line of reasoning open on the evidence: R v Cross [2009] EWCA Crim 1553. Each case turns on its facts; no universal test governs every alleged inconsistency.

3. Here the jury acquitted on every specific count, although the complainant’s evidence on those identified incidents was clear and direct. The evidence supporting the sample counts was materially less specific. It did not identify the relevant occasion, location, or whether the allegation involved withheld consent or reluctant submission. The prosecution also accepted that the judge could not give a direction requiring agreement on a particular underlying incident because the sample counts lacked even basic particulars.

4. In those circumstances, a reasonable jury could not safely be sure of guilt on the sparse stand-alone evidence for the sample counts after rejecting the specific allegations. The judge should have warned the jury expressly of the potential effect of acquittals on the specific counts when considering the sample counts. The convictions were quashed and consequential orders set aside.

5. A retrial was refused. Any new trial would inevitably refer to allegations previously found unproved, creating prejudice which could not be ameliorated and preventing a guaranteed fair trial.

• Court of Appeal (Criminal Division) — allowed the appeal in [2014] EWCA Crim 927, quashed the two rape convictions, set aside consequential orders, and refused a retrial.
• Leicester Crown Court — on 10 May 2013, HHJ Head convicted the appellant of two sample counts of rape and acquitted him of the remaining counts.