PRP v R 2024
The complainant reported to the police, sexual and domestic violence and abuse by her husband, as well as historic sexual abuse from P, her brother. The case for the prosecution in regard to P was that he had sexually assaulted and raped the complainant when she was a child (aged between 11 - 16, from 1991 to 1996), on occasion by use of restraint with use of handcuffs or threats of violence with production of a knife. P was about three and a half years older. The complainant hadn't reported this sooner as she felt that she had been unable to talk to her mother at the time of the abuse and said she'd been scared of her mother.
P was arrested, interviewed and charged in relation to the sexual assaults and rapes on the complainant. He denied the allegations.
At trial, the evidence for the prosecution case was a section 28 YJCEA pre-recorded cross-examination (see note (i) below) of the complainant in regard to the abuse by P; evidence from a police officer detailing the first account of the complainant (in this original statement, reference had been made to the domestic abuse suffered by the complainant from her husband, but this was edited out by agreement); and P's ex-wife's evidence for the prosecution saying that P had told her things, that he had touched her and done things with his sister that he "wasn't proud of".
D denied the offending and called as a witness his and the complainant's mother and father. The mother said she understood nothing had happened, the father, that he had little to do with the children and was not aware of the mother hitting the children.
During the trial, the defence made an application, pursuant to section 41 of YJCEA to adduce evidence of the complainant's husband's sexual abuse of her on the basis that it would help explain why the complainant was so upset and affected during the section 28 cross examination, to let the jury know that the complainant had said that she had been raped by her husband. The application wasn't made properly but, in any event, the judge accepted it as an application. The judge refused the evidence about the complainant's allegations.
In his summing up to the jury, the judge directed the jury:
“Indeed, we have heard that the complainant had anorexia and had seen a psychiatrist and been in counselling. You have not, primarily to preserve the complainant’s privacy as much as we can, heard anything about the cause of the anorexia or the reason she was undergoing counselling and treatment and, in the circumstances, it would be pure speculation for you to consider why she was behaving as she did in the video recorded interviews. There are, to put it simply, multiple different reasons why she may have been distressed during those interviews.”
P was convicted of four counts of indecent assault and three counts of rape against the complainant.
P appealed against conviction. The grounds of appeal were -
The judge had wrongly excluded evidence of the complainant's complaints of sexual abuse and domestic violence against her former husband. It was submitted that the jury did not have all of the details of the complainant's mental health background to place into context and consider.
The judge had wrongly failed to give a direction on doli incapax (see note (ii) below) in relation to P, in respect of incidents related by the complainant which did not form part of the indictment, these being P went to a special school as he had dyslexia. He had self-harmed by cutting himself and threatening to commit suicide during the relevant period. His parents had asked the complainant, his younger sister, to chaperone him.
Held
Appeal dismissed.
The trial judge was right to exclude evidence about the complainant's husband's sexual abuse of her. This was because the evidence was not relevant to any issue in the trial, and so did not fall within section 41(3)(a), the husband was not on trial. Also, the evidence was not admissible pursuant to section 41(5) as the evidence did not relate to any evidence adduced by the prosecution about any sexual behaviour of the complainant. (This argument however, hadn't been advanced on appeal).
P was aged 14 years and 5 months at the time of the earliest date of offending, therefore, there was no obligation on the trial judge to give a direction on doli incapax.
