The Court of Appeal has quashed B.F.J.’s conviction on six counts of sexual assault after finding that the jury had not been told about the limited purpose for which recent complaint evidence could be considered.
The judgment, delivered on 19 May 2023, concerned the appellant’s motion to add a ground to an appeal against conviction. The proposed ground said the trial judge had failed to explain that complaint evidence could be used to assess consistency, but was not evidence that the alleged events happened and could not corroborate the complainant’s testimony.
The counts concerned allegations said to have occurred at various locations between 1 September 1998 and 31 July 1999. The judgment says the complainant was 13, turning 14 in early 1999, and that the appellant was the school chaplain. The complainant testified that the appellant sexually assaulted him and that he did not complain at the time. The allegations first came to light in January 2017, when the complainant disclosed abuse to a doctor and later to his mother. The prosecution also adduced evidence of complaints to others, including the doctor and a friend.
The appellant argued that the jury had not been directed on the evidential value of recent complaint evidence. The Director of Public Prosecutions opposed adding the ground, pointing to the delay and the defence’s failure to ask the trial judge for a direction. The court said there was no satisfactory explanation for that failure, but it was not necessarily fatal where the issue could give rise to a fundamental injustice.
The judges said complaint evidence is admitted for the limited purpose of showing consistency in the complainant’s conduct. It is not proof of the allegation’s truth and cannot corroborate the complainant’s account. The court noted that the doctor’s evidence gave details of the complaint and that the prosecution had relied on complaint evidence in closing. It concluded the evidence was important and warranted an express direction to the jury.
The court permitted the appellant to add the ground, finding an oversight or error of substance that gave rise to an apprehension of real injustice. It concluded that the missing direction rendered the conviction unsafe and quashed it. The judgment addresses the motion to add a ground and the resulting challenge to the conviction; it does not state that a retrial was ordered.