Page 438 - Magistrates Conference 2019

Page 30

(a) Appellant's detailed submissions

131. Mr Blaxland relied on the authority of R v AA [2007] EWCA Crim 1779 and Pritchard [2011] EWCA Crim
2749, where the court considered the principle in R v AA and reviewed the authorities. The court held that, if a direction
(that the evidence of complaint was not independent evidence of the events complained of) was not given, it may render
a conviction unsafe, but that whether it did would depend on all the circumstances, including a consideration of the
summing-up and the evidence as a whole. Further Mr Blaxland relied on R v AC [2011] EWCA Crim 1430, where the
court quashed a conviction due to a failure to give an appropriate direction (in a case where the jury had convicted on
counts in respect of which there had been a complaint, but acquitted in respect of counts where there had not); and R v
Thompson [2014] EWCA Crim 743, where the court quashed a conviction in a rape case on the basis of a combination
of a failure to give a sufficient good character direction, a failure to give a recent complaint direction and a failure to
give a proper direction concerning the jury's approach to the complainant's demeanour.

132. Mr Blaxland therefore argued that the judge's directions as to complaint in this case were inadequate, saying that
he did no more than direct the jury that the evidence of the complaints "may well have a great bearing on the reliability
of the girl concerned" and, having reminded the jury in detail of what the complainant had said to others, concluded
with the comment: "So there are the various accounts that( C ) has given, all of them put together so you can think about
them, their consistency or otherwise in the circumstances in which they were given." Mr Blaxland also noted that the
Crown relied on the consistency between her complaints to others and C's evidence at trial and suggested that it was
significant that the jury returned a verdict of not guilty in respect of an allegation made to the police officer, which had
not been made to the aunt. He suggested that this indicated the importance that the jury attached to the evidence of the
complaints when considering credibility.

(b) Respondents' detailed submissions

133. Mr Whittam, on behalf of the respondent, accepted that the learned judge failed to direct the jury that the
complaint statements did not come from an independent source. He also conceded that it would have been preferable
had the learned judge made that clear. However, he maintained that this did not (either separately or in conjunction
with the other ground) render the conviction unsafe. He submitted that only one of the decisions cited actually assisted
the appellant, and he relied upon the decisions of this court in R v Ashraf [2011] EWCA Crim 1571 and R v H [2012] 1
Cr App R 30. In the latter case, Rix LJ considered many of the other decisions and went on:

"It may be said moreover that it must have been obvious that the evidence of complaint was not independent of the
children. It was their complaint. Nor did it have the immediacy and impact of truly "recent" complaint; and it was not a
case where the conduct was acknowledged and the sole issue was consent."

134. Mr Whittam said that, similarly, the directions given here rightly required the jury to concentrate on the
evidence of the complainant. Indeed, when the judge referred to what she had subsequently told others, it was in the
context of what she herself had said. Accordingly her complaints to others were placed in their proper context by the
structure of the summing-up and, just as in Ashraf and H, it would have been obvious to the jury what the position was.

135. Further, in supporting the overall safety of the convictions, Mr Whittam noted that the jury were unable to agree
on two counts on the indictment. One of those counts related to C and one to her sister. This revealed that the jury
were able to assess the strength of the evidence on each count, and that the alleged misdirection in relation to the
complaint evidence had no impact. That submission was supported by the fact that the count on which they could not
agree which related to C was the allegation about which she had not initially informed her mother, but did subsequently