Jersey Unreported Judgments

Rape - admissibility of evidence

[2021]JRC188

Royal Court

(Samedi)

9 July 2021

Before     :

R. J. MacRae, Deputy Bailiff, sitting alone

The Attorney General

-v-

RL

S. C. Thomas Esq., Crown Advocate.

Advocate I. C. Jones for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 14^th June 2021, I heard argument in respect of:

(i)        the admissibility of text messages sent by the complainant in this case to a friend who I will call B, and

(ii)       the admissibility of the evidence of Dr Norman Poole, a consultant neuropsychiatrist from St George's Hospital, Tooting, London, commissioned by the defence and contained in a report dated 4^th June 2021.

2.        This case is listed for trial in July with a time estimate of three days.  In order to establish the context of these two applications I briefly summarise the facts.

The facts

3.        The defendant is twenty-seven years old and is charged with raping the complainant on 1^st March 2020.  The complainant is in her mid-twenties. 

4.        The complainant went out for the evening with B.  They met at 7pm.  The complainant ("C") had not eaten much since lunchtime and drank heavily before ending up in a nightclub.  She had a vague memory of dancing at the nightclub and speaking to a barman that she knew but had no memory of leaving the nightclub.  CCTV from the nightclub shows C meeting a man - the defendant - and the two dancing together at 1.49am.  C appears to be drunk from the footage.  They left the nightclub and CCTV captured them in Liberation Square walking towards the Esplanade with C walking with a slightly swaying gait.  She cannot recall this and the next thing she clearly recalled is waking up in bed at home with the defendant on top of her having penetrative sex with her.  She says she woke up and froze.  The defendant said "Are you okay?".  She said "I think he finished and then he put my pants back on me".  The defendant ejaculated and was not wearing a condom.  C went to the bathroom and texted B asking her to ring the police at 3.18am.  The police attended C's home at approximately 3.30am and arrested the defendant.  On the body worn camera footage, the defendant is heard saying "She invited me back here".  After he was cautioned he said "I escorted her home, put her to bed and I don't remember after that". 

5.        In C's first account on the body worn footage, she said that she remembered the defendant walking her home and woke up to find the defendant was having sex with her. 

6.        Approximately two hours after the police attended, C produced a urine sample indicating that the alcohol content was twice the limit for driving.  The defendant made no comment in interview.  Forensic analysis of vaginal swabs provided extremely strong support for the proposition that vaginal intercourse had occurred between C and the defendant.  The defendant now, in his Defence Case Statement, claims that he had consensual vaginal sex with C which C initiated and fully participated in. 

The text messages

7.        The text messages were exchanged between C and B between 5.24pm and 6.06pm, before they went out for the evening in St Helier.  The relevant part of the exchange consists of C saying "My three weeks is up!".  B replied, inter alia, to the effect that C and B would be "on the prowl.... single ladies out tonight, OMG shall we play a game I find someone for you and you find someone for me [several laugh emojis]".  C replied "OMG let's do it [several laugh emojis]" and "Gonna go shave ma foof xxx".  B says "How funny would it be [laugh emojis] could find you your future husband tonight [laugh emoji] I did mine before xxx".  C replied "Here's to hoping; xxx".  The parties agree that C was referring to the fact that C had been told that she should refrain from sexual intercourse for three weeks on medical advice owing to a vaginal injury (which was not occasioned by any sexual activity), and the reference to "shave my foof" was a reference to C shaving her pubic hair. 

The competing arguments

8.        The defence wish to put the texts to the jury to see on the basis that they show that she either intended to have sexual intercourse that night or was open to the possibility of the same should it arise.  Accordingly, the text messages are said to be directly relevant to her state of mind and, relevant to the issue of her consent to sexual intercourse with the defendant.  It is important to bear in mind that there are two key issues in the case - (a) whether or not, in fact, C consented to sexual intercourse with the defendant, and (b) whether or not the defendant reasonably believed that she was consenting.  This evidence cannot be relevant to the latter issue as the defendant was unaware of this exchange at the time of the act of intercourse.

9.        Accordingly, this material can only be relevant, if relevant at all, to whether or not in fact C consented to sexual intercourse with the defendant approximately nine hours after this exchange of messages with B.

10.      The Crown say that the defence need leave to ask C questions about this exchange of messages, pursuant to the decision of the Royal Court in AG v Correia [2015] JRC 061A as the exchange of messages amounts to evidence relating to seize "previous sexual conduct".  They say that if they are wrong on this then the ambit of the Court's decision in AG v Correia needs to be developed by the customary law and, in the alternative, that the evidence is irrelevant to the question of C's consent to sexual intercourse as a matter of general principle. 

11.      The defence argue that the texts fall outwith the decision of the Royal Court in AG v Correia as they do not amount or relate to previous sexual conduct and are admissible and relevant, not merely to the issue of C's consent to sexual intercourse but as to various matters which were a prelude to intercourse, such as the fact that at some point in the evening C added the defendant to her Facebook profile as a friend, C (on the defence case) asked the defendant to walk her home, C (on the defence case) invited the defendant into her home and C (on the defence case) invited the defendant into her bedroom and then her bed.  The defence say that if C and B were to say in evidence that this was simply 'banter' between good friends then the jury would be entitled to put the exchange to one side, but it was proper for the texts to be put to C as they are on, the defence case, directly relevant to C's state of mind and speak to her intentions in respect of sexual activity that night.

The legal principles

12.      Before considering the decision of the Royal Court in Correia, it is important to note that the decision in Correia was, to some extent, (although not comprehensively) codified pursuant to Article 43 of the Sexual Offences (Jersey) Law 2018 which provides:

"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;

"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.

(3)     The States may by Regulations -

(a)         provide that paragraph (1) does or does not apply to evidence adduced, and to a question asked, for a purpose prescribed by the Regulations;

(b)     prescribe grounds on which the court may or may not give leave;

(c)     amend paragraph (2).

(4)     The power to make Rules of Court under -

(a)     Article 29 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949;

(b)     Article 13 of the Royal Court (Jersey) Law 1948;

(c)     Articles 19 and 40 of the Court of Appeal (Jersey) Law 1961,

is, in each case, to be taken to include the power to make Rules of Court necessary or convenient for the purpose of this Article."

13.      It can be seen that "sexual history" means "the fact that a complainant has engaged in a sexual act with a person other than a relevant defendant".  Accordingly, "sexual history", for the purposes of Article 43, is limited to sexual acts with a person other than the defendant.  The States are entitled by regulation to amend paragraph (2) of Article 43 but have not yet done so.  Article 43(1) clearly provides that, except with leave of the Court, no evidence may be adduced and no questions asked in cross-examination on behalf of a defendant about the sexual history of a complainant.

14.      This principle had already been established as a matter of customary law by the decision in AG v Correia, but it is important and helpful that the legislature has enacted Article 43 so as to put the principle enunciated in Correia beyond doubt and to provide for, in future, the possibility of regulations being made by the States to expand upon the principles set out in Correia and enshrine them in statute.  The judgment of Commissioner Sir Michael Birt in AG v Correia reviewed the relatively recent change in approach to the admissibility of previous sexual history of a complainant which had either been achieved by legislation (see paragraphs 19 and 20 of the judgment in respect of England and Wales) or by development in the common or customary law (the Court reviewed the position in Canada).

15.      The purpose of the Royal Court considering the position of other jurisdictions was in order to assist the Court in "establishing the principles of customary law for deciding when the previous sexual history of a complainant is admissible" (paragraph 17 of the judgment).  The reason for limiting the scope of such evidence was in order to address the fallacy that a complainant's previous sexual conduct was relevant (a) to their credibility on the premise that their previous sexual conduct with other persons made it less likely that they were telling the truth and (b) to consent on the basis that previous sexual conduct with other persons made it more likely that the complainant consented to sexual activity on this occasion.  Both fallacies are now regarded as incorrect and demeaning to complainants.  In Correia, the Royal Court, at paragraph 22 (iii), referred to the decision of the House of Lords in R v A [2002] 1 AC 45, where Lord Hutton said:

"142. In a criminal trial there are two principal objectives of the law. One is that a defendant should not be convicted of the crime with which he is charged when he has not committed it. The other is that a defendant who is guilty of the crime with which he is charged should be convicted. But where the crime charged is that of rape, the law must have a third objective which is also of great importance: it is to ensure that the woman who complains that she has been raped is treated with dignity in court and is given protection against cross-examination and evidence which invades her privacy unnecessarily and which subjects her to humiliating questioning and accusations which are irrelevant to the charge against the defendant. The need to protect a witness against unfair questioning applies, of course, to all trials but it is of special importance in a trial for rape."

16.      When dealing with the approach to be adopted in Jersey, Commissioner Birt said that he was prepared to lay down guidance as to the circumstances in which a complainant may be asked or evidence may be given about her previous sexual history, but he entered "three notes of caution" (paragraph 37).  The notes of caution were that he was giving judicial guidance which was "not to be treated as if in a statute and a Court can only focus on the issues as presented to it in a particular case before it".  Secondly, he said "the guidance is only concerned with the sexual history of a complainant other than with the defendant.  I have not considered the circumstances in which evidence of previous sexual history with a defendant may be relevant and, as R v A shows, the position may be very different there".  The third note was that he had formulated the guidance by reference to a prosecution for rape but the principles would apply to other sexual offences.

17.      Commissioner Birt then set out the principles at paragraph 39 as follows:

"39.      Doing the best I can, I would summarise the correct approach as follows:-

(i)        In a prosecution for rape, evidence that the complainant has 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 i.e. that it affects her credibility. 

(ii)       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.  

(iii)      Evidence of consensual conduct on the part of the complainant with persons other than the accused may, however, be admissible for other purposes.  

(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. 

40.      Where evidence is not admissible in accordance with the preceding paragraph, questions concerning such matters may not be asked of the complainant."

18.      It is reasonably clear from the contents of paragraph 39 and 40 of the judgment in Correia that the Court was considering sexual activity as opposed to sexual conduct in a wider sense when laying down the guidelines.

19.      However, the Crown relies upon paragraph 41, where the Court said:

"41.    Where the Defence wish to ask questions of a complainant or introduce evidence relating to her previous sexual conduct, they must apply for leave to do so and the judge should not give leave unless satisfied that it is necessary for the purposes of a fair trial."

20.      The Crown say that the term "previous sexual conduct" is wide enough to encompass this communication between C and B the evening before the alleged rape.

21.      In support, the Crown draws the Court's attention to various English authorities in relation to Article 41 of the Youth Justice and Criminal Evidence Act 1999.  Section 41 says:

"41.    Restriction on evidence or questions about complainant's sexual history.

(1)    If at a trial a person is charged with a sexual offence, then, 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 any accused at the trial, about any sexual behaviour of the complainant.

(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied-

(a)  that subsection (3) or (5) applies, and

(b)  that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.

(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either-

(a)  that issue is not an issue of consent; or

(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or

(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar-

(i)to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or

(ii)to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,

that the similarity cannot reasonably be explained as a coincidence.

(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

(5) This subsection applies if the evidence or question-

(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and

(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.

(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).

(7) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence-

(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but

(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.

(8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section."

22.      Plainly this provision is in different terms from the equivalent article in the Sexual Offences (Jersey) Law 2018, and the customary law principles enunciated in AG v Correia.

23.      The reference to "sexual behaviour" under section 41 is defined in section 42(1)(c) as "any sexual behaviour or other sexual experience, whether or not involving any other person, but excluding...anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused".  What constitutes "sexual behaviour" is determined objectively and is not a question of what the complainant perceives as being sexual behaviour.  It has extended (see R v Ben-Regab [2011] EWCA Crim 1136) to a complainant's responses when participating in a Facebook quiz.  The English Court of Appeal, in R v D [2011] EWCA Crim 2305, made a similar finding in relation to Facebook entries that the complainant made subsequent to the rape, in which she posed clothed but provocatively.  In both cases, Ben-Regab and D, the Court of Appeal declined to set aside or / and upheld decisions by the trial judge declining to permit cross-examination on such matters.  In Ben-Regab, Pitchford LJ explained:

                       "35.      It will be noted that "sexual behaviour or experience" need not involve any other person. The expression is plainly wide enough, in our view, to embrace an activity of viewing pornography or engaging in sexually-charged messaging over a live internet connection."

24.      And in R v D, Rafferty LJ said this at paragraph 7:

"The complex mixture of motives which impels people, especially young people, to post messages on such sites includes, the court suspects, the desire to attract attention, admiration from peers and to provoke the interest of others in the person posting the material. We suspect that objective truth and the dissemination of factual evidence comes low on the list. In this instance the complainant's postings can be summarised as her saying outrageous or provocative things or claiming daring behaviour on her part. There are many entries, for example, boasting about how much she drank and the great hangovers she suffered as a result. In addition, there are claims of interest in sexual matters. These come much later in the postings and are to be found at the time of trial. By the following August she was posting photographs of herself and of herself with other girls. All the pictures are of the girls clothed, but provocatively so, no doubt in a way perceived by her and by them as sexually attractive. Choosing our words with care, they are images not dissimilar in content and presentation to what can be seen travelling many an underground escalator, albeit the model in question here is a girl in her early teens rather than a grown woman. None of the postings lays claim to direct sexual activity on the part of the complainant, though three or four of them indicate that she thinks quite a lot of the time about her own sexuality and indeed about having sexual intercourse."  

25.      Both Courts, as I have said, held that the trial judge was entitled to refuse to permit cross-examination on the evidence in question.

26.      Section 41(2) says the Court may give leave if it is satisfied that various exceptions apply and one exception under Section 41(3)(b) is that the issue of consent and the sexual behaviour of the complainant to which the evidence relates is 'alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused'.  This is good sense and although the Jersey legislation contains no similar provision, such an approach is consistent with the terms of Article 82C of the Police Procedures and Criminal Evidence (Jersey) Law 2003 introduced by the Criminal Procedure (Jersey) Law 2018, which makes it clear that evidence of a persons 'bad character' does not extend to evidence which "has to do with the alleged facts of the offence with which the defendant is charged". 

27.      In my view, a similar approach needs to be adopted to such evidence as is the subject of this application. 

28.      I note that one of the cases in relation to Section 41(3)(b) is Mukadi [2003] EWCA Crim 3765.  In this case, the complainant (in case of rape) and appellant met late at night in shop in central London, where he was working as a security guard, and when he finished work.  They went to a park together and drank wine, and then went back to his flat.  The complainant gave evidence to the effect that she had gone there with a view to getting to know him better and to see whether they could become friends.  They started kissing and she reluctantly allowed him to perform oral sex on her; but she did not consent to the intercourse which followed.  Shortly before meeting the appellant, the complainant had got into an expensive car driven by an older man after he pulled up alongside her when she had been on the pavement.  He had driven her to a petrol station, and the pair had exchanged numbers.  The Court of Appeal held that the judge had erred in refusing leave to cross-examine as to this matter; if it was evidence of 'sexual behaviour' within Section 41 (the trial judge held that the previous conduct was 'sexual behaviour', the Court of Appeal declined to express a view on whether the incident in the car amounted to sexual behaviour or not) it was a permissible line of cross-examination under subsection (3)(b) in that it related to an 'issue of consent' and took place at about the same time as the event which was the subject matter of the charge.  It was relevant to the issue of consent because, if the jury had heard this, they would have been entitled to conclude that when she got into the car she had in mind that there might follow some form of sexual activity, and such evidence could have caused them to come to a different view of the complainant's state of mind and her reason for accompanying the appellant to his flat, and what she did or did not do, or did or did not consent to, prior to the act of intercourse, and this in turn might have led them to a different view from that which they reached on the issue of consent to the act of intercourse.  Had the complainant's evidence been that when she accompanied the appellant she had not been averse to some form of sexual activity, but stopping short of intercourse, then the car incident could have had no bearing on the issue of consent.

29.      This decision has been criticised both by Professor Ormerod and by a commentary reported in Criminal Law Week.  The criticisms are well founded in my view.  It is said that the Court's premise that an inference could be drawn that the complainant had sexual activity in mind when she got into the car earlier in the evening appeared to be pure speculation and even if it were a proper inference what conceivable basis was there for saying this was relevant to what happened with the defendant some time later.  Further, it is said that this evidence had no bearing on the issue of the complainant's later consent to intercourse.  The comment in Criminal Law Week concluded:

           "The reasoning of the court seems to add up to no more than, because she got in the car for the purposes of prostitution, the jury might not have believed her evidence as to what she had in mind when she went to the flat, and in turn they might not have believed her denial of consent to intercourse.  This goes only to credibility and it is exactly the sort of specious reasoning that is forbidden by legislation.  The matter can be tested by supposing that she had indeed been asked in cross-examination about the car incident, and that she had said that paid-for sex was just exactly what she had had in mind.  What use could the defence then have made of such admission, other than to say 'she's a prostitute', a matter of no relevance where there was no suggestion that she was acting as such at the material time."

Discussion and decision  

30.      The Royal Court in Correia did not adopt such a wide definition of "sexual behaviour" and a definition was not adopted by the States when implementing the relevant provision of the Sexual Offences (Jersey) Law 2018. 

31.      I do not accept that the reference to "sexual conduct" at paragraph 41 of the judgment in Correia was intended to encompass the sort of exchange that took place between C and B in this case.  However, in my judgment, the customary law principles restricting the scope of cross-examination of a complainant who alleges that a sexual offence has been committed against them set out by the Royal Court in Correia ought to extend, and do extend, to evidence such as this as the good reasons for the provision of the guidance given by the Royal Court in Correia extends to this sort of evidence.

32.      The text evidence in this case cannot be relevant in the general sense to the credibility of the complainant and it was not suggested that it was or could be.  In relation to the "sexually-charged messaging" referred to by Lord Justice Pitchford in Ben-Regab, the judge said that questions in relation to this material would have no purpose "unless the jury was being invited to conclude that C was the sort of person who would engage in consensual foursome sexual activity and is not the sort of person who had recently been a victim of rape" (paragraph 35).  Lord Justice Pitchford said at paragraph 37:

"37.    Had this evidence been admitted, the jury would in all probability have received advice from the judge against using such evidence in the enforcement of a stereotype of victims of sexual offences. We agree that these questions were of minimal value to the jury's task."

In my view, the same considerations apply to the evidence which the defence seek to adduce in this case. 

33.      In R v Mokrecovas [2002] 1 Crim App R20 the defendant was charged with rape.  The complainant was friendly with the defendant's brother whom she had known for a short period of time.  On the evening in question she drank a great deal of vodka and stayed the night at the brother's flat which he shared with the defendant.  She slept in the brother's bed and said the brother went to sleep on the settee in the sitting room.  The complainant said that the next morning the defendant entered her bedroom and raped her.  The judge held (and the Court of Appeal agreed) that the defence could not cross-examine the complainant on the allegation that she had consensual sexual intercourse with the brother on two occasions, once twelve hours prior to the alleged rape and once two hours prior to the alleged rape.  The judge held that there was nothing to stop the victim being cross-examined in relation to the state of her drunkenness or the fact that she was in the flat because she wanted to spend the night with the brother in his bedroom or as to the sleeping arrangements, but she could not be asked about the alleged sexual activities between the complainant and the brother during the night and in the morning.  Lord Woolf LCJ, giving the judgment to the Court, quoted from the paragraph of the judgment of Lord Hutton in R v A cited above (and referred to, as I have said, in Correia) and held that the evidence the defence wished to adduce was irrelevant to motive (the defence was not arguing consent) and inadmissible.  The Court agreed that for the complainant to be asked about these matters "would invade her privacy unnecessarily and subject her to unnecessary humiliating questioning and accusations". 

34.      Returning to the principles in Correia, Commissioner Birt set out the circumstances in which evidence of previous sexual conduct on the part of the complainant may be admissible at paragraph 39(iv).  Accepting these principles were developed with physical sexual conduct on the part of the complainant with persons other than the defendant in mind, when these examples of admissible evidence are considered, it is immediately clear that none of them by extension to the facts of this case or by analogy will apply to this text exchange. 

35.      As set out above, the defence wish to adduce evidence to the effect that C, by reason of this exchange, was or may have been prepared to have sexual intercourse with somebody that night and it is contended that is relevant to the question as to whether or not she consented to sexual intercourse with the defendant.  I asked defence counsel in the course of argument whether the upshot of this exchange of texts was any different from the well-known and unexceptional practice of a woman on a night out carrying a condom in her purse or handbag and he accepted that this was a "difficult" question to answer.  Defence counsel was quite entitled to add that every case turns on its own facts and that hypothetical examples of particular scenarios are not always helpful when determining the admissibility of the evidence before the Court. 

36.      However, I do not agree that to deprive the jury from hearing this evidence would in any way, as suggested by the defence, "distort the picture" before the jury.

37.      I am satisfied that this exchange is inadmissible by way of extension of the principles set out by the Royal Court in Correia.  It is not appropriate for me in this case to attempt to lay down the limit of those principles and it is unnecessary to do for the purpose of this judgment.  If I am wrong on this then, absent extending the principles in Correia to the facts of this case, I would have concluded that this evidence is insufficiently relevant to the issues in this case, i.e. consent and the defendant's reasonable belief in consent, to be admitted.

38.      Accordingly, I hold that any sexual conduct or sexual behaviour by the complainant with or involving any person other than the defendant may not be adduced without leave of the Court in a case where the complainant has made an allegation of a sexual offence, and the Court should only give leave to adduce such evidence with the principles set out by the Royal Court in Correia (as adopted by the Jersey Court of Appeal in W -v- AG [2017] JCA 196) and the words of Lord Hutton in R -v- A well in mind.  As the Court of Appeal said in W at paragraph 24: 

"The purpose of the general rule is to counter what is being 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."

The evidence of Dr Poole

39.      Dr Poole says that he was instructed to provide information regarding "alcohol-induced en bloc memory impairment" and whether this could explain the disparity between the accounts of "the defendant and C".  The defence say that the jury may be assisted by Dr Poole's evidence when evaluating the evidence of C. 

40.      In his report, he summarises the evidence of C over three pages.  Then he summarises the evidence of B and police officers who saw C and the defendant on the day in a page and a half.  He then, in the remaining three and a half pages of his report, expresses various opinions.  He says at paragraph 47 that it is more likely for people to suffer "en bloc type amnesia as a consequence of alcohol intoxication", in other words, being unable to remember things owing to excess alcohol consumption in certain circumstances.  He expresses the opinion that there are "several factors" (in paragraph 47) that make this more likely.  These include "drinking on an empty stomach..., drinking spirits; mixing drinks....consuming larger than usual accounts" and so on.  He says that an observer of someone suffering from en bloc amnesia "can detect a glazed look" (paragraph 50) and their behaviour will be "consistent with general drunkenness" and "not appear especially intoxicated".  He expresses the opinion, although he has never met C and would wish to examine her and interview her, that it is "more likely than not" that she was suffering from an en bloc episode at the time.

41.      He says, having consulted a text book, that "higher doses of alcohol" lead to "a reduction of psychological efficiency and motor control, which is often at variance with the subjective feelings of superiority and skill" (paragraph 54).  He says "the intoxicated person becomes increasingly cheerful, impulsive and heedless" and "With greater intoxication, speech becomes slurred and the person loses balance whilst walking".  Sometimes such persons can suffer "blackouts" and forget what they did during these periods.  Apparently (paragraph 57) a third of first year medical students experience one such blackout episode in the previous year because they get so drunk.

42.      There are various "predictors of en bloc blackouts" (paragraph 58) which include "gulping rather than sipping; drinking over a short period of time; and eating insufficiently prior to consuming alcohol".  Dr Poole says "a history of binge drinking and being a slim built female increase the chance of developing en bloc amnesia".

43.      The Crown say that this is simply inadmissible because it is within the experience of members of the jury.

Principles

44.      In the case of Lekkerkerker v AG [2014] 1 JLR 272, the Court of Appeal said this at paragraph 23 and 24:

"23.-ƒAs a general rule, in a criminal trial evidence is not admissible with regard to anything not immediately within the knowledge of the witness. This rule excludes, inter alia, expressions of opinion or belief save in respect of the evidence of a person who is qualified to express an opinion on the subject in which he has recognized expertise (see R. v. Silverlock (8)).

24.-ƒThus, the opinion of an expert is admissible to furnish the court with information "which is likely to be outside the experience and knowledge of a judge or jury" (per Lawton, L.J. in R. v. Turner (11) ([1975] Q.B. at 841)). In that case the judgment continues (ibid.):

"If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does."

45.      In the recent case of AG v L [2018] JRC 223 which was a rape case involving an allegation that the defendant had sex with a complainant while she was asleep, the prosecution sought to adduce expert evidence as to whether or not it is possible for a person to sleep while being sexually assaulted.  The Court declined to admit such evidence saying at paragraph 53:

"In my judgment, it is not appropriate in this case to allow the expert evidence about sleep as part of the Crown's case. Sleep, its depth, variations, duration and the effects of alcohol or otherwise, are within the common human experience and, therefore, the experience of a jury. I do not think that a jury needs expert evidence to decide a central part of the Crown's case - whether or not there was consent. I do not therefore admit it."

46.      Recently, in B v AG [2020] JCA 148, the Court of Appeal confirmed that it is the collective experience of the jury that is important.  It rejected the submission that expert evidence ought to be admitted where it might be outside the experience of some members of the jury and therefore of assistance to those individuals.  The Court said at paragraph 56:

"Advocate Steenson submitted that, when assessing whether information is likely to have been within the experience and knowledge of a jury, the court must consider whether it would be so in relation to any individual juror.  We cannot accept that submission.  The clear inference from the above authorities is that it is the jury as a whole rather than its individual members whose anticipated knowledge and experience is relevant."

Decision

47.      Frankly, my reading of the report of Dr Poole is that most of his observations were commonplace and would add little, if anything, to the jury's understanding of the effects of alcohol on the person consuming the same. 

48.      The jury will have to make their own assessment to the extent to which C was affected by alcohol having regard to the evidence that they will receive from B, what C said in her video interview and the footage available and, if he gives evidence, the defendant.

49.      It will be quite disproportionate for Dr Poole's evidence to be admitted, then be the subject of expert evidence in reply by the Crown.  In that eventuality, the jury's focus would be dislodged from the principal issues in this case, namely the fact of C's consent and the defendant's belief in her consent. 

Authorities

AG v Correia [2015] JRC 061A. 

Sexual Offences (Jersey) Law 2018. 

R v A [2002] 1 AC 45. 

Youth Justice and Criminal Evidence Act 1999. 

R v Ben-Regab [2011] EWCA Crim 1136. 

R v D [2011] EWCA Crim 2305. 

Police Procedures and Criminal Evidence (Jersey) Law 2003. 

Criminal Procedure (Jersey) Law 2018. 

Mukadi [2003] EWCA Crim 3765. 

R v Mokrecovas [2002] 1 Crim App R20. 

W -v- AG [2017] JCA 196. 

Lekkerkerker v AG [2014] 1 JLR 272.  

AG v L [2018] JRC 223. 

B v AG [2020] JCA 148.