The Court of Appeal has dismissed EH’s appeal against his convictions for two counts of sexual assault and two counts of child defilement, ruling that the trial judge was entitled to restrict cross-examination about a complainant’s sexual history.
The appeal concerned whether the defence should have been allowed to question the complainant more broadly about text messages exchanged with a teenage boy in August 2010. The court held that the messages did not meet the legal threshold for admitting evidence or questions about a complainant’s previous sexual experience. It said the trial judge had allowed the subject to be explored in a restricted way and that there was no doubt about the fairness of the trial or the safety of the verdict.
EH was convicted by majority verdicts after a third trial in February 2014 and sentenced to six years’ imprisonment in June that year. The Court of Appeal judgment, delivered by Birmingham P. on 5 February 2019, addressed only the single ground pursued on appeal: the refusal to admit certain phone communications and allow related cross-examination.
At trial, the complainant testified that EH had sexually assaulted her when she was a child. Medical evidence described a healed tear to her hymen, which the doctor said was at least a week old and consistent with blunt-force penetrating trauma. The defence sought to suggest an alternative explanation for the injury and relied on texts exchanged with a boy identified in the judgment as DR. The complainant denied having a sexual relationship with him, though her description of their relationship was qualified.
The trial judge permitted questions about whether the complainant had experienced vaginal penetration by someone other than EH and allowed questioning about a particular text. The judge refused broader questioning about other exchanges, finding that this would risk the harm the legislation was designed to prevent.
The Court of Appeal said the statute required leave only where refusing the evidence or question would be unfair to the accused: the evidence had to have the potential to leave a jury no longer satisfied of guilt beyond reasonable doubt. The court found that sexual chat between the complainant and the boy, who was 13 at the time, did not provide a basis to conclude that she had had penetrative sex with a peer. It said the application was nowhere close to meeting the statutory threshold and dismissed the appeal.