The Court of Appeal has quashed M.T.’s conviction for sexual assault, finding that the child complainant’s substantial loss of memory left the defence without a realistic opportunity to cross-examine her about the alleged incident.
In a judgment delivered on 21 March 2023, the court allowed M.T.’s appeal against his conviction on a single count. The complainant was six when the alleged touching took place and 11 at the trial. Her video-recorded interview had been made about four and a half years before she was cross-examined.
The court said the child had been frank that she mostly remembered the event through the recording and had only a few possible “flashbacks”. It was not satisfied that her statement in cross-examination that she remembered the touching established that she independently recalled the incident. The court concluded that her memory was substantially impaired, if not completely absent.
The prosecution had argued that the child gave a clear account in the recording, had complained to her mother the next morning and remained emphatic when challenged about whether M.T. touched her. M.T.’s lawyers argued that the delay and the child’s lack of memory made cross-examination effectively meaningless. The trial judge admitted the recording and later refused an application to halt the case, leaving the jury to assess the evidence.
The Court of Appeal noted that other testimony supported the surrounding circumstances: witnesses agreed the child had been at the house and that M.T. had sat beside her. But no other evidence supported the alleged touching, which was the central disputed issue. The court held that jury warnings could not cure the unfairness because the jury had heard a coherent account on video while the defence could not meaningfully test the child’s memory of the event.
The court said the result arose from the combination of facts in this case, including the child’s age, the single-incident allegation and the degree of memory loss. It did not establish a bright-line rule based on delay or mean that a case should stop whenever a child cannot recall some details. It also said that allowing a child to view her recorded interview before cross-examination is not inherently improper.
The court said the appropriate procedure in this case would have been to exclude the recorded evidence under section 16 of the Criminal Evidence Act 1992, rather than halt the trial under the separate jurisdiction used by the trial judge. It allowed the appeal and quashed the conviction.