Question
Bernard is charged with raping Charlene, whom he used to know when they were at school together. The prosecution claims that Bernard met Charlene at a football match, and that the offence took place in a car park after the match was over. A passer-by, Dave, says that he went to the car park and heard the sound of a woman crying. He says that he saw Charlene lying on the ground and asked her if anything was wrong. Charlene said that there was, and Dave replied, ‘You’ve been interfered with, haven’t you?’ Charlene nodded and said, ‘It was Bernard. He raped me.’ Bernard’s brother, Eric, has given a written statement to the police in which he says that earlier that day he had overheard Bernard saying to some friends in a public house, ‘I’m going to have that Charlene; she’s so sexy.’ Eric has since gone abroad and so far the police have not been able to trace him. Bernard denies raping Charlene, saying that she has mistaken him for someone else. His solicitor asked for an identification procedure to take place, but the police refused on the ground that it was unnecessary. Bernard’s counsel wishes to cross-examine Charlene about an incident last year when she made an allegation of rape against a local doctor but subsequently withdrew it. Two years ago Bernard pleaded guilty to a public order offence and was fined £25. He has no other previous convictions.
Discuss the evidential matters arising.
Answer plan
There are five topics to be discussed:
Answer
Dave’s evidence of Charlene’s distress will be admissible to support her evidence that she was raped, but the judge must warn the jury that it does not constitute independent confirmation of her account (Islam, (1999)). Her complaint to him that she had been raped by Bernard will be admissible under s 120(4) and (7) CJA 2003. By subsection (8), the fact that it may have been elicited, at least in part, by a leading question is irrelevant. The judge, in accordance with Islam (1999), must tell the jury that her complaint to Dave does not amount to independent confirmation of her account.
On the assumption that Eric can be traced, he may be able to give evidence of what he heard his brother say. This could amount to an expression of Bernard’s contemporaneous state of mind, and so be admissible under the res gestae exceptions preserved by s 118, para 4, CJA 2003. However, the common law remains uncertain about the admissibility of an expression of intention in order to prove that the speaker subsequently carried it out. In Buckley (1873) a police officer’s statement of intention to his superior was held admissible for this purpose. But this was the decision of a trial judge only, and no reasons were given for admissibility. In Moghal (1977) the Court of Appeal considered admissible a statement of an intention to kill made seven months before the murder of the deceased. But what the Court said on this point was only obiter. On the other hand, in Wainwright (1875) a trial judge held inadmissible a statement by the deceased of her intention to visit a particular address, saying that it was only a statement of intention that might or might not have been carried out. And in Thomson (1912) the Court of Criminal Appeal held that a deceased’s statement of intention to procure her own miscarriage was inadmissible. But the Court had not been directed to the law on res gestae; instead, counsel for the appellant had based his submissions on the proposition that the strict rules of evidence did not apply to the defence. Not unnaturally, this submission was rejected.
On the assumption that this evidence would in principle be admissible, but that Eric cannot be traced before the trial, the question would then be whether his written statement could be used in evidence. By s 121 CJA 2003 a hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless certain further conditions are satisfied. One of these is that the statement should be admissible under s 117 (see s 121(1)(a)). This condition would be satisfied on these facts. The statement was received by the police in the course of their occupation; Eric, who supplied the information contained in the statement, may reasonably be supposed to have had personal knowledge of the matters he dealt with (s 117(2)(a) and (b)). The statement was prepared for the purposes of pending or contemplated criminal proceedings, but condition (d) under s 116(2) is satisfied, so the additional requirements under s 117(5) will be met.
The police may have been in breach of their duty under Code D in refusing an identification procedure. Para 3.12 states that whenever a witness has purported to identify a suspect before an identification procedure, and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is either impracticable or would serve no useful purpose. As an example of the latter situation the Code cites the case where a suspect is already well known to the witness. It is unclear whether that was so in this case. How well did the defendant and the complainant know each other when they were at school? How many years have passed since they left school? Had they seen each other at any time after leaving? However, a breach of Code D would be unlikely to lead to the exclusion of the identification evidence that the prosecution does have. Section 78(1) of PACE is discretionary, and breach of Code D is likely to attract only a comment from the judge that an opportunity to obtain better evidence was missed.
The judge would, however, have to give a Turnbull warning to the jury. This is clearly a case where the prosecution depends wholly or substantially on the correctness of an identification of the defendant. In Shand v R (1996) it was held that the warning should be given where identification is based on recognition as well as in other situations where the risk of error might be greater. He will, therefore, have to tell the jury of the special need for caution when considering identification evidence and of the reasons for that need; he must invite them to examine the circumstances in which the identification was made and remind them of any weaknesses (including the absence of a formal identification procedure); he should invite the jury to look for evidence supporting the identification and point out to them those items that are, and are not, capable of providing such support.
On the facts at present it seems unlikely that Charlene can be cross-examined about her previous allegation against the doctor. In E (2005) the Court of Appeal emphasised that although evidence of a previous false allegation did not attract the provisions of s 41 YJCEA 1999, there must be a proper evidential basis for asserting not only that the allegation was made, but that it was false. There is no evidence that the earlier allegation was false. It could have been withdrawn for innocent reasons.
It may be possible to treat Bernard for the purposes of this trial as a man of good character. In Gray (2004) the Court of Appeal, summarising earlier decisions, said that if a defendant has a previous conviction which, because of its age or nature, may entitle him to be treated in this way, the trial judge has a discretion to do so. If he does so, the defendant is entitled to a full Vye direction; that is to say, his good character must be taken into account when considering his credibility and the likelihood of his having done what the prosecution alleges. The Court added that where the previous conviction can only be regarded as irrelevant or of no significance in relation to the offence charged, which is the position on these facts, the discretion ought to be exercised in favour of the defendant.