The Court of Appeal has quashed all three indecent assault convictions against an anonymised appellant, finding that a trial judge wrongly admitted evidence from the husband of one complainant to rebut an allegation of recent invention that had not been made.
The appellant had been convicted on 24 June 2022 of one count relating to complainant A and two relating to complainant B. The alleged offences dated from 1986 to 1989, when both complainants were aged between 10 and 12. The judgment identifies them as sisters and the appellant’s nieces. The appellant appealed on the sole ground that the trial judge should not have allowed A’s husband, C, to give rebuttal evidence.
During cross-examination, the defence questioned A about her recollection of the alleged incident and wording in her proposed statement referring to “something in my memory” telling her the appellant had tapped his leg to invite her to sit on his lap. A said some details were sketchy and agreed that she had recovered the memory.
The prosecution then called C, who said A had told him when the children were small that, as a child, she had been on her uncle’s lap at a car’s wheel and he had groped her breasts. The prosecution argued his account rebutted an implication that A had recently reconstructed her evidence. The defence said the questioning concerned recovered memory and the timing of A’s complaint, not recent fabrication. It also argued the disclosure, which the appellant submitted could not have occurred before 2004, was too remote from the alleged events to meet the applicable test.
The Court of Appeal held that rebuttal evidence of this kind may be admitted where a witness has been accused of recent fabrication, the earlier statement is consistent with the witness’s evidence, and its timing and circumstances rationally answer that accusation. But it found that the defence questions addressed alleged flaws in A’s recollection and recovered memory; they did not suggest she had recently invented the allegation. The required starting point for admitting the rebuttal evidence was therefore absent, and the trial judge had erred in exercising his discretion.
The court rejected the prosecution’s argument that the error could be disregarded. It said C’s evidence had bolstered A’s credibility and could not be excised from the trial. Although the appeal ground concerned count 1, all counts had been tried together, and the jury could rely on similarities between the complaints because evidence on each was cross-admissible. The court quashed the entire conviction. The judgment does not state that the appellant was acquitted or specify any retrial order.