Case No: 200406556/B1 
Neutral Citation Number: [2005] EWCA Crim 1170
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Tuesday, 26th April 2005
 
B E F O R E:

LORD JUSTICE GAGE  
MR JUSTICE CURTIS 
 
MRS JUSTICE COX DBE 

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R E G I N A 

-v- 

SHINO GARAXO
 
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MISS E NOTT appeared on behalf of the APPELLANT
MR T FITZGERALD appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE GAGE:  This appellant was convicted at Blackfriars Crown Court on 21st October 2004 of two counts. They were one count of sexual assault and another count of common assault.  On 29th October 2004 he was sentenced to 2 years' imprisonment in respect of the sexual assault and 2 months imprisonment consecutive in respect of the common assault.  The judge also made a recommendation that he be deported.  He appeals against his conviction by leave of the Single Judge.
2.	In short outline the case was as follows.  The Crown evidence was that on 31st May 2004 the complainant, a young woman, LB, went with the appellant to a basement flat in Askew Road. They had not met before that morning.  The prosecution alleged that whilst in the flat the appellant made sexual advances towards the complainant. When she refused he first struck her face and then put his hand part way down her trousers towards her vaginal area.
3.	The defence case was that the complainant had raised the possibility of sex but indicated that she wanted payment, at which point the appellant asked her to leave, and she did. The appellant denied the common assault and the sexual assault.  His case was that they never took place.
4.	In a little more detail, the complainant gave evidence that in the early hours of 31st May 2004, when she was on Shepherd's Bush Green she had an argument with a Somalian man and then began a conversation with this appellant. At the time she had taken some crack cocaine, earlier that morning and had run out of alcohol and cigarettes. She was sitting on a bench with the appellant and his friend.  The two men shared Vodka with her and cigarettes and bought her some chocolate and crisps. After a while the appellant invited her back to his friend's house.  She said she would come back with them but only to carry on drinking.  In evidence she gave different reasons for going back to the flat which were variously:  that she was cold; she was hungry and she wanted more Vodka.  She was, however, emphatic that she did not go back with him for sex.
5.	They returned by bus to the appellant's friend's flat in Askew Road.  When they got inside, the friend went to the lavatory and the complainant sat on the sofa.  At that time the appellant, it was the complainant's evidence, removed his outer clothing and began to touch her leg.  Her evidence was that she told him to stop, and she got up to leave. However, when she got to the passageway, she saw the appellant's friend. The appellant asked her to come back into the room and she did.  She told him that she was not going to have sex with him, whereupon she alleged that he punched her to the face.  She said that he pushed her onto the sofa and said he was going to have sex with her dead or alive.  Next, he tried to put his hands down her trousers but because her trousers were too tight, he did not get very far.  She screamed.  His friend came in and in the confusion she made good her escape. She called the police who came to the flat and in due course arrested the appellant.
6.	When the complainant was examined by the police doctor, she was found to have swelling and bruising to her right cheekbone, consistent with a recent blow.
7.	The appellant did not give evidence.  His defence was put to the jury through cross-examination and by way of the two police interviews which he had given. In those interviews, he agreed that he had met Miss B on Shepherd's Bush Green. He agreed she had been fighting with a man and woman before she joined him and his friend. He agreed she came with him and his friend back to his friend's house and sat down on the sofa. He said at interview she then said to him: "If you want to make love, I need money." At this point he accepted that he became angry. He told her that if she had said that before, they would not have brought her back to the address because they had spent all their money on drink. He said that his friend came in and he told him Miss B was asking for money, and that: "So we didn't need this woman any more, you don't have money, I don't have money." She was then ejected by him and his friend from the flat.  He denied in interview punching or sexually assaulting Miss B in any way.
8.	Upon that evidence and other evidence, to which we will refer in a moment, this appellant was convicted.  There are two main grounds of appeal, although each is subdivided into different subsidiary grounds. We deal with the second ground of appeal but has been taken first.  That is an appeal based on a complaint, on behalf of the appellant, that counsel was not permitted by the judge to cross-examine the complainant about previous complaints made by her against other men, which it was alleged were false.  Before the trial, counsel was given, by the prosecution, material which, it is submitted, showed that on two previous occasions Miss B had made allegations of sexual assault and common assault against men in 2000 and 2001. The nature of those complainants are recorded in CRIS reports, the first dated 14 December 2001 and the second of 31st January 2001.  They are referred to in detail by the judge in his ruling in relation to the application to allow cross-examination of the complainant in respect of those matters.
9.	The complaints read as follows (page 7H to 9F of the transcript of the ruling in Volume II of the papers before the court): 
"14/12/2000, 9.29. Victim... attended at 9 am. She stated she wanted a Crime Reference Number for the Social. She then stated that a male tried to rape her. On speaking to her, she stated that she was walking north in Horne (sic) Lane on Tuesday night and the suspect, who she had seen before, started talking to her.  When she got to an alleyway near the BP Garage, he pulled her into an alleyway where he fondled her breasts. She fought him off, he punched her in the face causing a bruise to her eye and it was badly bloodshot.  He then took the money from her purse. The victim has not attended her GP and did not report it yesterday; she did not have a telephone. Her eye was badly swollen yesterday. 
It would appear that the complainant, [LB] did not go on to assist the police to pursue that potential defendant, unknown of course from that description to the police."
The next report is dated 31st January 2001 at 4.15 pm, the entry the judge records as follows: 
"Victim attended XA front counter direct.  It was obvious she was distressed and crying, but also that she was under the influence of drink and probably drugs, a self-confessed crack addict.  Noticeable was a bump on the left side of the face by the ear. 
I offered to call an ambulance for medical attention  and she declined this on several occasions throughout her time at the station. The informant alleged that whilst walking in Acton High Street she was approached by a young black male described as having red skin, who wanted -- insisted that she should give him a blow job as she owed him money for crack cocaine which she had purchased some time earlier in the year. He apparently grabbed her and threatened her, and when she refused to oblige he punched her in the face once, causing the injury described. 
Miss [B] became quite abusive when asked to furnish in details for a report of both herself and the suspect. I suspect she knows full well who the suspect is but refuses to acknowledge this.  However, having started the report one minute later she declined to assist any further, and after a brief conversation about police taking no action she left as quick as she had arrived. The victim is currently unwilling to substantiate this allegation; however, there would appear to be clear evidence -- [B's] large bump -- that she was assaulted."
10.	The learned judge was taken to various decisions of this Court which deal with this issue. In his ruling he decided that he ought not to permit cross-examination into these particular matters and ruled against the application made on behalf of the appellant.
11.	It is the appellant's case before this Court that the judge's decision was wrong.  Miss Nott, on behalf of the appellant, submits that the cross-examination, if allowed, would not have involved cross-examination about Miss B's sexual behaviour and was therefore not covered by section 41 of the Youth Justice and Criminal Evidence Act 1999.  Further, she submits, that if the cross-examination was about sexual behaviour of Miss B, it was not on the issue of consent and so was not caught by section 41(2) and (3) of the Act.  Thirdly, the purpose of the cross-examination was not to elicit evidence of previous sexual conduct of Miss B by the back door but was to show that she had made false allegations against men before.  In her submissions to this Court, Miss Nott draws attention to what she says are the similarities in the complaints made on the previous occasions to the complaint made in respect of this matter.
12.	The prosecution submit that there was no proper evidential basis upon which the appellant could suggest to Miss B that the previous complaints were untrue.  Accordingly, such cross-examination would fall squarely within section 41 of the Act and was impermissible.  Submits Mr Fitzgerald, on behalf of the prosecution, before this Court, the material disclosed in the CRIS reports was not sufficient to show, that the complaints set out in the CRIS reports were, or likely to be, untruthful.
13.	Both counsel agree that the legal principles upon which the Court should base its decision are set out in the case of R v T & H [2002] 1 WLR 632.  In that case, this Court was considering appeals from pre-trial rulings by two judges dealing with, first, counts of indecent assault and rape (R v T), and secondly, one count of indecent assault (R v H).  In each case the trial judge had ruled that questions sought to be asked by defence counsel, constituted cross-examination about sexual behaviour, which went to credit and therefore was impermissible. In each case some of the questions suggested that previous complaints by the complainant had been false.  Giving the judgment of the Court, Keene LJ, at paragraph 33, at page 639, stated: 
"It seems to this court that normally questions or evidence about false statements in the past by a complainant about sexual assaults or such questions or evidence about a failure to complain about the alleged assault which is the subject matter of the charge, while complaining about other sexual assaults, are not ones 'about' any sexual behaviour of the complainant. They relate not to her sexual behaviour but to her statements in the past or to her failure to complain." 
Later in the judgment the Court referred to a concern that the judge in the case of H had in respect of the cross-examination sought to be made by counsel for the defendant.  The judgment continues, at paragraph 40: 
"What seems to have concerned the judge is this.  If a complainant is asked whether she had told a friend, X, on a previous occasion that she had been raped by Y (not the defendant) she may deny making the statement at all.  However, she may admit making it, and, in accordance with the object which the defence has in mind, she would then normally be asked 'that was not true, was it?'  No problem arises if she agrees that it was a false statement.  But she may answer that it was true.  The defence will normally then be bound by that answer (see R v S [1992] Crim LR 307); but in some cases damage to the complainant's reputation may already be done. It is not difficult to postulate more damaging circumstances than in the example just given:  if the complainant is alleged by the defence to have said to a friend in the recent past that she had just had intercourse with two complete strangers on leaving a disco, she admits making the statement to the friend and then goes on to deny that it was a lie, the very problem, or one of the problems which the 1999 Act was intended to guard against, could be created:  her reputation in the eyes of the jury might well be severely injured and the deterrent effect on other potential complainants in sexual cases would continue to operate. 
41.  As we say, this seems to be the difficulty which Judge Hammond was trouble by and it is a matter for proper concern.  However, it is open to the judge to guard against abuse of the system. The defence, wishing to put questions about alleged previous false complaints, will need to seek a ruling from the judge that section 41 does not exclude them." 
We pause here to say that that was precisely what happened in this case: 
"It would be professionally improper for those representing the defendant to put such questions in order to elicit evidence about the complainant's past sexual behaviour as such under the guise of previous false complaints.  But in any case the defence must have a proper evidential basis for asserting that any such statement was (a) made and (b) untrue.  If those requirements were not met, then the questions would not be about lies but would be 'about [the] sexual behaviour of the complainant' within the meaning of section 41(1).  The judge is entitled to seek assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue.  That may not provide a watertight guarantee that in every single case about the complainant's past sexual behaviour will be excluded, but it would normally prevent the sort of danger to which we have referred." 
In this case the judge ruled that there was not sufficient evidence that these previous allegations made by Miss B were untruthful. Accordingly, as we have indicated, he refused leave to cross-examine.
14.	This was not an easy decision for the judge.  However, we have reached the conclusion that the judge should have permitted cross-examination on these two matters.  In respect of each of these two complaints it seems to us that the material was such that, depending upon answers given by Miss B, the jury could have been satisfied that these two previous allegations were untrue.  The reference by Miss B, in the first complaint, to getting a crime reference number, for the "Social" seems to us at least capable of implying an improper motive for making the allegation.  The second complaint, if accepted, by Miss B as having been made, and the refusal to co-operate with the police, in our judgment, is also capable of providing or founding an inference that the complaint is untruthful, particularly when the complainant was, as the note of her complaint makes clear, under the influence of drugs at the time. We recognise, as did the court in R v T & H that it is possible that allowing the defence to cross-examine in such circumstances may be open to abuse. But once, as we have concluded in this case, a proper evidential basis for cross-examination is established, it is, in our judgment, wrong to prevent the defence from asking questions which may permit a jury to draw an inference that the victim has fabricated complaints. The judge, of course, will be astute during the course of the cross-examination to ensure that it does not go further than is permissible and he can monitor it as the cross-examination proceeds.
15.	That conclusion is sufficient to cause us to conclude that the convictions in this case are unsafe.  But a further ground of appeal has been raised and we deal with it shortly.  It relates to evidence which was adduced by the prosecution, in relation to a previous statement made by the appellant in respect of a complaint made by him of a robbery.  The complaint which he made was that he had been robbed by a prostitute when he had been with her for the purpose of obtaining sexual favours from her.
16.	During the course of his interview in this case, the appellant gave answers which the Crown alleged showed that he had, if not an abhorrence of prostitutes, a considerable aversion to them. So the Crown sought to put in this other evidence to show that that did not meet his earlier attitude to prostitutes.
17.	In the course of submissions to this Court, and in the course of the judge's ruling, it is not entirely clear whether the evidential basis for the admission of this evidence was that the interview answers of the appellant were untruthful, or simply that it showed those answers in a different light.  In our judgment, the prosecution in this case never really grappled with that essential problem.  If the Crown was seeking to put in this evidence on the basis that it showed that the appellant was telling a lie in his interview, we can see a proper basis for the evidence to be admitted.  Furthermore, it seems to us that there was nothing wrong with the evidence being made part of the Crown's case by being adduced by a police officer.
18.	If it was a lie, on the other hand, then it would require the judge to give the usual Lucas direction.  No such direction was given in this case.  If the Crown sought to adduce the evidence on any other basis, strive, as we have, to see how it could be relevant, we reach the conclusion that it would have no relevance on any other basis.  Whichever of these two reasons is the correct one, it seems to us, if either admitted the judge should have given lies direction, which he did not, or if it were not lies it was not relevant and ought not to have been admitted. This is an additional reason why, in our judgment, this appeal must succeed.  Our conclusion is that the verdicts are unsafe, and we allow this appeal.
19.	LORD JUSTICE GAGE:  Are there any applications?
20.	MR FITZGERALD:  In relation to a retrial of this case.
21.	LORD JUSTICE GAGE:  Have you got instructions?
22.	MR FITZGERALD:  I have not taken instructions as far as retrial is concerned. 
23.	LORD JUSTICE GAGE:  You have no instructions.
24.	MR FITZGERALD:  I do not have direct instructions for that.
25.	LORD JUSTICE GAGE:  What we will do for you, Mr Fitzgerald, we will not part from this case until 1 o'clock.  If you have any instructions you can make an application.  If you do not, the appeal is allowed and no retrial is directed.
26.	MR FITZGERALD:  I am grateful, I will take instructions.  
(The Court Adjourned) 
27.	MR FITZGERALD:  I have taken instructions.  The Crown do have an application to direct that the defendant be retried in this case, and that he be arraigned within the usual period of 2 months.
28.	LORD JUSTICE GAGE:  That is the statutory time.  (Pause while waiting for the appellant).
29.	MISS NOTT:  The appellant has a good grasp of English.
30.	LORD JUSTICE GAGE:  That is quite often the case. So it appeared when he answered quite happily.  You are asking for a retrial, Mr Fitzgerald. What do you say about that, Miss Nott?
31.	MISS NOTT:  With respect, this appellant has now been in custody for just over 11 months, the total sentence that was passed upon him was 2 years and 2 months.
32.	LORD JUSTICE GAGE:  In custody.
33.	MISS NOTT:  He has been in custody from the date of arrest, which was the early hours of 1st June 2004. In essence he has served all but 2 months of the sentence imposed upon him by the learned judge, who concluded the trial.  It may be that the order for deportation that is the reason for that fact.
34.	LORD JUSTICE GAGE:  That is not insignificant in a matter of this age.
35.	MISS NOTT:  No, but I know this man has already come to the attention of the immigration services. He is in fact a failed asylum seeker.  Before these proceedings were instituted he had already been brought to the attention, as I understand, of the immigration services.  Indeed, a representative from that service attended his sentence and told me, certainly, that as a failed asylum seeker really recommendation for deportation would make little difference, if any, because--
36.	LORD JUSTICE GAGE:  I am not quite so sure about that.
37.	MISS NOTT:  I can only relay what was told me at the time. He has already served effectively his sentence, all but 2 months of it.
38.	LORD JUSTICE GAGE:  If we do order, there is a possibility of application for bail.
39.	MISS NOTT:  I have instructions to make such an application if your Lordships-- 
40.	LORD JUSTICE GAGE:  I do not think you will get it from us.
41.	MISS NOTT:  There is always the danger that if he does not get bail because, the reasons of course he did not have bail in the past, is he is a failed asylum seeker.  It seems unlikely one cannot assume certainly he would get bail, it seems to me rather likely.  Those are the things I can say. 
(The Bench Conferred) 
42.	LORD JUSTICE GAGE:  We shall grant a retrial.  That will not stop him from making an application for bail, either now, or -- when I say "now", to the Crown Court which we shall direct that he be arraigned in.  This is not an insignificant matter in terms of the deportation order.  It can make a difference.  It is also not a insignificant matter, so far as the complainant is concerned. In the circumstances, in our view, it is a proper case for a retrial. But pending retrial, whether or not he gets bail is a matter for the Crown Court to determine.  So that we will direct that the appeal be allowed and the convictions quashed.  A fresh indictment be preferred. Now then, where was it tried?
43.	MR FITZGERALD:  Blackfriars.
44.	LORD JUSTICE GAGE:  There is no reason why it should be tried at Blackfriars again.  We direct that he be arraigned on the fresh indictment within 2 months.  Any application for bail should be made to the Blackfriars Crown Court.  Now, you want a representation order for the retrial, would you not?
45.	MISS NOTT:  Please, my Lord, for both myself and my instructing solicitors who at the time were Michael Lipman & Co.
46.	LORD JUSTICE GAGE:  Yes, you certainly have that.  Very well, that completes everything, does it not?  Thank you very much both of you for your help.