R v Cousins 2021


C and the victim, V, met through an online dating app. They agreed to meet, and C travelled to the home of V. Whilst at the home of V, C instigated acts of a sexual nature and the two had sexual intercourse. A little later, C attempted to penetrate the anus of V and V attempted to stop this and stated she did not want to do that. Despite this, C continued and placed his penis back into V’s anus. C placed himself on top of V so she could not move. V was able to free herself by grabbing C’s testicles. V went into the garden where C followed her. V’s daughter, L, also came outside.  V told L that C had forced himself on her; a taxi was called and C left.
 
The prosecution case was that C penetrated V's anus with his penis and did so without her consent. The case relied upon recent complaint evidence from L and a friend of V, CH. L said that her mother told her that whilst she had consented to sexual activity C had forced himself into her bottom and she had asked him to stop and when he did not, she grabbed his testicles. CH gave evidence that she received a phone call from V on the day of the incident. She could hear shouting in the background between L and a man and the man was moaning that he was in pain of some kind. V did not speak at the time, so CH called her back shortly thereafter. V then told her that C had attacked her in the bedroom, that they had had consensual sex at first, that C had tried to have anal sex with her, and that V had grabbed him by his testicles because she did not want to do so. V had not referred to this during her evidence. 
 
The defence case was that V was fabricating her allegation of rape. It was claimed that he had made a comment that V was offended by, so she grabbed his testicles. During his police interview, C provided a prepared statement stating that the sexual activity was consensual and on the advice of his solicitor, he made no comment in respect of any other question. 
 
The defence asserted that the account of CH was inadmissible as V had not referred to speaking to CH in her evidence. The judge ruled that section 120(2) of the Criminal Justice Act 2003 was a standalone provision and was satisfied that the statement was admissible. The judge stated that even if he was wrong on that point, he would have allowed the prosecution to make an application under section 114 and admit the statement through that gateway as it was clearly in the interests of justice for that statement to be admitted into evidence.
 
The Judge also ruled that, following C’s failure to give his version of events to the police in interview or following charge, an adverse inference direction could be given under section 34 of the Criminal Justice and Public Order Act 1994. Whilst it was always desirable for the specific questions asked in interview to be adduced in evidence, the absence of specific questions being brought to the jury's attention did not preclude the giving of the direction. 
 
The issue for the jury was consent and after concluding V had not consented, C was convicted of one count of rape, contrary to section 1 of the Sexual Offences Act 2003. 

C sought to appeal against the conviction on two grounds, namely:
 
1. The judge erred in allowing the prosecution to adduce the recent complaint report of a witness.
2. The judge erred in directing the jury that they could draw an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994 from C’s failure to mention facts in his police interview.
 
Permission for Ground 1 to be heard was granted but refused for Ground 2.

Held


Appeal dismissed; conviction upheld. 
 
The Court of Appeal agreed with the manner the trial judge had dealt with the issues and confirmed that they could not see anything unfair about the way the legislation had been applied in this case. 
 
For section 120 to apply, “the witness” had to be the complainant.  Here the evidence that V had made the previous statement was given by CH.  CH was the vehicle by which the previous statement of the complaint was adduced in order to rebut the accusation of recent fabrication.  In the case of subsection (2), the provision does not provide a route by which a statement is admitted; it is instead admitted pursuant to the common law rule that previous consistent statements are admissible to rebut an allegation of fabrication, and subsection (2) makes it evidence of the truth of its content.

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