Jersey Unreported Judgments

Hearing (Criminal) - reasons for refusing leave for evidence of the complainant's previous sexual history to be admitted

[2020]JRC223

Royal Court

(Samedi)

23 October 2020

Before     :

Sir William Bailhache, Commissioner, sitting alone

The Attorney General

-v-

Mark Fernandes

Ms E. L. Hollywood, Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        I sat as a single judge on 13^th October to consider an application by the Defendant seeking leave for evidence of the complainant's previous sexual history to be admitted pursuant to Article 43 of the Sexual Offences (Jersey) Law 2018 ("the 2018 Law") and Article 67E (2)(c) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law").  Having heard from Advocate Gollop, I refused leave for the evidence to be admitted with reasons to follow.  This judgment contains those reasons.

2.        The indictment laid against the Defendant currently charges two offences, one of rape contrary to Article 5 of the 2018 Law and the other sexual penetration without consent contrary to Article 6 of the same law.  Following the incident which gave rise to the charge, the complainant attended Dewbury House in May 2019 where she was examined by the force medical examiner, Dr French.  The notes made by Dr French indicated that the complainant reported, inter alia:-

(i)        She had not had any sexual contact in the ten days prior to the date of her examination; and

(ii)       She was not taking any contraception medication; she was not preventing pregnancy.

3.        The defence requested copies of the complainant's relevant medical records from which it emerged that on 27^th April, 2019, the complainant attended a medical practitioner where she was prescribed both a birth control treatment / contraception medication and a brand of a morning after pill.  The doctor's witness statement to the officer in charge was broadly to the effect that he only prescribed the morning after pill to female patients if they have reported to him that they have had unprotected sexual intercourse very recently. 

4.        When asked by the police about the contraceptive prescription, the complainant initially averred that she had collected only the birth control treatment / contraception medication from the pharmacy but she later changed her position in that respect when the pharmacy confirmed that she had in fact received both sets of drugs.  She then stated that she had found an extra box of medication in the bag of medication from the pharmacy, which she considered had ended up being in the same bag by mistake, and she disposed of it in the bin.

5.        In her witness statement of 7^th May 2019, the complainant stated that she had not had sexual intercourse since January 2018.

6.        The Crown are not intending to call Dr French to give evidence, such parts of what would have been her evidence being covered by admissions which the defence had agreed.  The Crown were also not intending to call the medical practitioner whose notes indicated the prescription of contraceptive drugs for the complainant.

7.        In those circumstances, and in the absence of any admission being agreed by the Crown on this matter, Advocate Gollop sought leave to adduce evidence of the material part of the report of Dr French and of the medical prescriptions which had been given to the complainant and which she had presented to the pharmacy to be filled.  The application was opposed by the Crown.

8.        Article 43 of the 2018 Law, so far as is relevant, provides as follows:-

"43.    Evidence as to sexual history

(1) Except with the leave of the court -

    (a) no evidence may be adduced; and

    (b) no question may be asked in cross-examination,

by or on behalf of a relevant defendant, about the sexual history of a complainant.

(2) For the purpose of paragraph (1) -

"complainant" means a witness other than a relevant defendant; Sexual Offences (Jersey) Law 2018 Article 44

"relevant defendant" means a defendant prosecuted for an offence under this Law, an offence of indecent assault under customary law, a customary law offence abolished by Article 44 or an offence under a Law repealed by Article 45;

"sexual history" means the fact that a complainant has engaged in a sexual act with a person other than a relevant defendant."

9.        The Article provides for the States to make regulations and the Royal Court to make rules of court, but none have been made relevant to this issue, or indeed at all.

10.      Article 67(E)(2) of the 2003 Law provides as follows:-

"67E.  Credibility

(1) This Article applies if, in criminal proceedings -

(a) a statement not made in oral evidence in the proceedings is       admitted as evidence of a matter stated; and

(b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement.

(2) In such a case -

(a) any evidence which (if the maker of the statement had given such evidence) would have been admissible as relevant to his or her credibility as a witness is so admissible in the proceedings;

(b) evidence may, with the court's leave, be given of any matter which (if the maker of the statement had given such evidence) could have been put to him or her in cross-examination as relevant to his or her credibility as a witness but which could not have been adduced by the cross-examining party;

(c) evidence tending to prove that the maker of the statement made (at whatever time) any other statement, inconsistent with the statement admitted as evidence, is admissible for the purpose of showing that he or she contradicted himself or herself."

11.      Advocate Gollop, who made his submissions with great sensitivity, accepted the irrelevance of the complainant's sexual history in principle.  His submissions really amounted to this - evidence of contraceptive prescriptions are not evidence of previous sexual history, but combined with the statement to the force medical examiner that the complainant had had no sexual contact in the ten days prior to 5^th May 2019, and the statement that she was not taking contraception medication and thereby not preventing pregnancy, showed such inconsistency that it was in the interests of justice that the defence could test the complainant's credibility by putting questions in this area to her.

12.      Whereas in England and Wales, Section 41 of the Youth Justice and Criminal Evidence Act 1999 expressly prohibited the adducing of evidence or asking of questions relating to previous sexual history if the purposes would be to impugn the complainant's credibility as a witness, the position under Article 43 of the 2018 Law was more flexible and it was open to the court to give leave to have such evidence adduced or questions put.  He submitted that in Jersey the judge had a discretion under our legislation and with reference to these discrete points, the evidence of sexual conduct tended to prove bias or motive to fabricate on the part of the complainant.  In that context he relied on AG v Correia [2015] JRC 061A where at paragraphs 34 - 41 inclusive Sir Michael Birt, Commissioner, developed the customary law of Jersey on this subject.  The Commissioner noted that a defendant has the right to adduce evidence relevant to his defence, including evidence which goes to the building blocks of his defence; and he noted the two myths that evidence of previous sexual history with other men was once (but no longer) thought to be relevant as tending to show that the complainant was less worthy of belief, and also such evidence showed that the complainant would be more likely to consent to sex with the defendant on the occasion in question.  As he pointed out, the evidence of previous sexual history was simply not relevant to whether a woman was more likely to be a liar, nor was the fact that she had had consensual sex with other men on previous occasions relevant as showing that she was more likely to have consented on the occasion subject to the charge.  The evidence of previous sexual history was not admissible therefore because it was not relevant.

13.      At paragraph 39 of his judgment, the Commissioner set out what he understood to be the correct approach and, having noted that evidence of consensual conduct on the part of the complainant with persons other than the accused might be admissible for other purposes, he gave examples as follows:-

"(iv)    By way of illustration only, and not by way of limitation, the following are examples of admissible evidence:-

(a) Evidence of specific instances of sexual conduct tending to prove that a person other than the defendant caused the physical consequences of the rape alleged by the prosecution;

(b) Evidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant;

(c) Evidence of prior sexual conduct, known to the defendant at the time of the act charged, tending to prove that the defendant believed that the complainant was consenting to the act charged;

(d) Evidence of a pattern of sexual conduct so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that the complainant consented to the act charged or behaved in such a manner as to lead the defendant to believe that the complainant consented;

(e) Evidence tending to rebut proof introduced by the prosecution regarding the complainant's sexual conduct;

(f) Evidence that the complainant has made a false allegation of rape."

14.      With that background, the Commissioner held in that case that where the defence wished to ask questions of a complainant or introduce evidence relating to her previous sexual conduct, an application for leave to do so had to be made and the judge should not give leave unless satisfied that it was necessary for the purposes of a fair trial.  In that context, the judge had to be satisfied that there was a proper evidential basis to support the grounds upon which the defence wished to ask questions or introduce evidence about previous sexual conduct with other persons.

15.      The Royal Court's approach in this case was adopted by the Court of Appeal in W v AG [2017] JCA 196, albeit that the court had not heard full argument on the point and neither advocate sought to persuade it that the Royal Court had gone wrong in Correia.  However, at paragraph 24 of the court's judgment, Perry JA noted:-

"24.    ... The general rule is that evidence that a complainant engaged in consensual sexual conduct with persons other than the defendant is not admissible to support the inference that a person who has previously engaged in consensual sexual conduct is for that reason less worthy of belief as a witness.  Such evidence is similarly not admissible to support the inference that a person who has previously engaged in consensual sexual conduct with other persons is for that reason alone more likely to have consented to the sexual conduct at issue in the trial.  The purpose of the general rule is to counter what has been characterised as the 'twin myths' namely that unchaste women are more likely to consent to intercourse and in any event are less worthy of belief: see A (No 2) [2002] 1 AC 45, per Lords Steyn and Hutton at paragraphs [27] and [47], respectively.  The general rule also recognises that to allow victims of sexual abuse to be harassed unfairly by questions about their previous sexual experiences is unjust to them and may distort the course of the trial by distracting attention from the real issues which have to be determined.

25.      An obvious exception to the general rule is evidence or questioning about a complainant's previous false complaints of sexual assault.  A previous false complaint is not about sexual behaviour of the complainant at all, at least not in any relevant sense: if the complaint is false, there was no sexual assault or abuse, the twin myths are not engaged, and the issue becomes one relating to the credibility of the complainant.

26.      So far as this exception to the general rule is concerned, the case law makes it clear that there has to be a 'proper evidential basis' for asserting that the previous complaint had been made and that it was untrue.  The reason for this is obvious: in the absence of such a basis the evidence or questioning would be about previous sexual behaviour and the general rule would be undermined.  Whether there is a proper evidential basis is a fact sensitive exercise and a matter for the trial judge's judgment rather than discretion."

16.      I take the customary law to be as set out above, prior to the enactment of the 2018 Law.  The question is whether the enactment of Article 43 of the 2018 Law has had any impact on the customary law provision.

17.      As it currently stands, in the absence of any regulations made by the States pursuant to Article 43(3) prescribing grounds on which the court might or might not give leave or providing for cases where evidence might be adduced or a question asked for a purpose prescribed, the 2018 Law in my judgment has no additional effect, and the court should have regard to the cases mentioned in deciding whether or not to grant leave pursuant to Article 43(1).  

18.      In the course of his submissions, Advocate Gollop contended that if evidence was admissible under Article 67(E) of the 2003 Law, then that would be a good reason to give leave.  He also agreed that if it was not admissible under that article, then subject to the exceptions in Correia, the evidence would not go in.

19.      In my judgment, the terms of Article 67(E)(1)(a) were not met.  There was no statement not made in oral evidence in the proceedings which was to be admitted as evidence of a matter stated.  There is a conjunctive 'and' between sub-paragraphs (a) and (b) of that paragraph, and therefore 67(E)(1)(a) needs to be satisfied if the Article is engaged.  Advocate Gollop accepted that he would need leave under Article 43 of the 2018 Law to put questions to the complainant in relation to the information given by her to the force medical examiner and the contraceptive prescriptions in question and it is only then if she did not agree to accept the defence propositions that he would seek to call the force medical examiner to adduce evidence first hand of the complaints made to her.  He submitted that he should not be prevented from putting inconsistencies to the complainant: the intention was not to leave the jury with the impression that the complainant was liable to have one night stands, nor was it to encourage the jury by implication to apply the twin myths.

20.      In my judgment Article 67(E) does not assist the defence at all.  There is no statement not made in oral evidence in the proceedings which is to be admitted as evidence of a matter stated unless the court gives leave to put questions to the complainant under Article 43 of the 2018 Law.

21.      I turn next to whether or not leave should be given under Article 43 pursuant to the court's approach in Correia.  Advocate Gollop submitted that the complainant had a motive to lie - to make a false allegation of rape - because her boyfriend was in his car outside the defendant's house at 6 a.m. and could be expected to have questions as to how the complainant had come to spend the night in another man's bed.  In my judgment, that is of course a possible defence to run in cross-examination of the complainant, but it is unrelated to the complainant's sexual history; there is no link between that allegation and the alleged lie to the force medical examiner.  I note that the fact of the prescription for contraceptive pills, whether the regular contraceptive pill or the morning after pill, does not necessarily imply a sexual relationship with the complainant's boyfriend; and in any event that relationship was said both by the complainant and by the boyfriend to be platonic at that stage.  In short, therefore, to acquiesce in the putting of questions about previous sexual history to the complainant on the grounds of credibility does not fall within any of the Correia guidelines and directly engages the twin myths.  Furthermore, had leave been given on this basis, it would drive a coach and horses through the statutory rule that previous sexual history should not be the subject of evidence being adduced or questions put in cross-examination - it would be possible in too many cases routinely to put such questions.  Furthermore, the evidence in relation to the morning after pill is such that it would be almost impossible to give the jury a direction fair to the complainant as to how that evidence should be treated.  At least one of the twin myths would be engaged because the jury would be left with the impression that this complainant was a person prepared to have one night stands, and that this would go directly towards the issue as to whether she consented on the night in question.

22.      For these reasons, I refused leave to the defence to ask questions of the complainant in this area and to adduce evidence, in the absence of formal admissions, by requiring the force medical examiner to be tended for cross-examination.

Authorities

Sexual Offences (Jersey) Law 2018.

Police Procedures and Criminal Evidence (Jersey) Law 2003. 

Youth Justice and Criminal Evidence Act 1999. 

AG v Correia [2015] JRC 061A. 

W v AG [2017] JCA 196.