Costanzo & Anor, R. v

Evidence of a complainant’s previous sexual behaviour in a sexual-offence trial is admissible under section 41(5) of the Youth Justice and Criminal Evidence Act 1999 only so far as necessary to rebut or explain sexual-behaviour evidence adduced by the prosecution. General evidence of previous sexual activity cannot be used to challenge consent on the occasion charged. Fresh grounds of appeal must be cogent and supported by an application to vary, addressing delay, its explanation, prior knowledge, the overriding objective and the interests of justice. The renewed applications were dismissed because the convictions were not arguably unsafe.

Costanzo and Orlando were convicted by a unanimous jury at the Crown Court at Isleworth in October 2019 of two counts of rape, contrary to section 1(1) of the Sexual Offences Act 2003. They were each sentenced to seven years and six months’ imprisonment. Leave to appeal against conviction was refused by a Single Judge. They renewed their applications, advancing amended grounds and seeking to adduce fresh evidence.

The principal issues were whether evidence of the complainant’s previous sexual behaviour should have been admitted under section 41 of the Youth Justice and Criminal Evidence Act 1999, whether a change or clarification in her evidence undermined the convictions, and whether an undisclosed DNA report justified a fresh ground of appeal.

Applications dismissed. The convictions were not arguably unsafe.

1. The court reaffirmed that grounds of appeal should ordinarily be lodged with the notice of appeal or application. A late fresh ground must be cogent and accompanied by an application to vary. The applicant should address the delay, its explanation, whether the relevant facts or issues were known when original advice was given, the overriding objective and the interests of justice. The approach in R v James and others [2018] EWCA Crim 285, [2018] 1 WLR 2749, and the due-diligence principles in R v McCook [2014] EWCA Crim 734 were applied.
2. Under section 41 of the Youth Justice and Criminal Evidence Act 1999, evidence or questioning under subsections (3) and (5) must relate to a specific instance or instances of alleged sexual behaviour. Section 41(5) permits evidence only where it relates to sexual-behaviour evidence adduced by the prosecution and goes no further than necessary to rebut or explain that evidence. Once the statutory criteria are met, the judge has no discretion to exclude the evidence, as stated in Re: T [2012] EWCA Crim 2358, [2013] Crim LR 596.
3. The proposed evidence concerned sexual encounters with different men, at different times and in materially different circumstances. It could not rebut or explain the complainant’s evidence that she would not have consented to a threesome with two strangers in a nightclub. The Judge was therefore entitled to refuse the section 41 application.
4. The DNA report should have been disclosed, but the applicants were aware of its existence from disclosed material and could have obtained it with reasonable diligence. In any event, the evidence would not have affected a relevant issue. The late fresh-evidence ground therefore failed both on the merits and under the high threshold for introducing a new ground.
5. There was no proper evidence that the complainant had discussed her evidence impermissibly with her partner. Her clarification after the defence case was first put to her could naturally be explained by reflection overnight. The alleged change did not provide a cogent basis for questioning the safety of the convictions.

The original grounds, save for the revised section 41 ground, remained without merit. The CCTV evidence was compelling and fully supported the jury’s conclusions.

• Court of Appeal (Criminal Division): Renewed applications for leave to appeal against conviction dismissed. The convictions were held not to be arguably unsafe.
• Single Judge: Leave to appeal against conviction refused on 13 November 2020.
• Court of Appeal (Criminal Division): The applicants’ sentences were upheld on 13 February 2020 following an unsuccessful application by the Solicitor General for leave to refer, [2020] EWCA Crim 1814.
• Crown Court at Isleworth: The applicants were convicted by a unanimous jury in October 2019 and sentenced to seven years and six months’ imprisonment each.