R v Rhys Davenport

Fresh evidence said to undermine a complainant’s credibility must be assessed in its full evidential context. An answer to a compound and unclear question cannot properly be treated as a deliberate lie where the witness consistently denied material allegations and later explained which elements of the question were denied.

Even where proposed fresh evidence otherwise satisfies Criminal Appeal Act 1968, section 23, it provides no basis to allow an appeal unless it is capable of showing that the conviction is unsafe.

The applicant was convicted at Bristol Crown Court of sexual assault and assault by penetration. His defence at trial was that the sexual activity was consensual.

After the verdict, the complainant volunteered that she had omitted an aspect of the incident from her police interview and trial evidence. In a subsequent interview under caution, she explained that her trial answer denying that she was naked and astride the applicant had been given in response to compound questions. She accepted straddling him, but denied being naked or sitting on his groin.

The applicant sought to adduce this material as fresh evidence under section 23 of the Criminal Appeal Act 1968, contending that it established a lie in cross-examination and rendered the convictions unsafe.

1. The application for leave to appeal was refused. The court held that the proposed fresh evidence could not provide an arguable basis for finding either conviction unsafe.
2. The applicant’s contention depended on characterising the complainant’s answer to the final cross-examination question as a deliberate lie. That characterisation was untenable. The preceding question had combined whether she was on the applicant’s groin with whether she was naked; her request for clarification showed that she found it unclear. The repeated question likewise combined being astride the applicant with being naked.
3. Read with the whole cross-examination, the answer was consistent with her continuing denial that she had willingly participated in sexual activity, removed her clothing, or consented. Her later account accepted only that she had straddled the applicant. It maintained that she was not naked and was not on his groin.
4. The court rejected the suggestion that her later disclosure was calculated to aggravate sentence. She had first sent her draft victim personal statement and then voluntarily raised the omitted matter. Properly formulated separate questions would not have assisted the defence and might have damaged its case.
5. Although the evidence otherwise met the criteria in section 23 of the Criminal Appeal Act 1968, it was not capable of affording a ground to allow the appeal. The court declined to receive it and refused leave to appeal. The Crown Court was to restore the matter for sentence.

• Court of Appeal (Criminal Division): Refused the applicant leave to appeal against convictions for sexual assault and assault by penetration: [2024] EWCA Crim 1084.
• Crown Court at Bristol: The applicant was convicted by a jury on 13 July 2023. Sentencing was adjourned pending the application for leave to appeal.