ABY, R. v

Factual and Procedural Background

The Appellant was convicted in May 2013 of multiple counts including rape and sexual assault of a child under 13, as well as cruelty to a person under 16, and sentenced to 18 years imprisonment. He applied for leave to appeal against conviction and sentence. In July 2014, the Court granted leave but dismissed the appeals except for a reduction in sentence related to cruelty by neglect, which did not affect the overall sentence. The central issue at trial was the jury's view of the complainant ("X").

In November 2018, the Criminal Cases Review Commission ("CCRC") received an application asserting that the safety of the convictions was undermined by new allegations made by X against a prosecution witness ("P") and an unidentified individual after the appellant's trial and appeal. The CCRC referred the conviction to the Court of Appeal under section 14(4A) of the Criminal Appeal Act 1995, noting that the jury had assessed X's evidence in a Crown Court trial and that the new material might affect the verdicts given the centrality of X's testimony.

The appellant also sought to revive a previously rejected ground relating to disputed expert medical evidence given by Dr Atkin, but the CCRC did not support this ground.

X, aged 15 at the time of disclosure, alleged sexual abuse by the appellant over a period from ages 10 to 12/13, including incidents involving strangulation and abuse occurring in the family home. The appellant denied the allegations, attributing them to X's mental illness and possible malicious motivations amid familial breakdown.

X's mental health history was complex, involving diagnoses including complex PTSD, multiple hospital admissions, and episodes of psychosis, self-harm, and suicidal ideation. The trial judge ruled on X's competence to give evidence, concluding she met statutory criteria despite her mental health challenges. Expert evidence from Dr Atkin, who treated X, described symptoms but was restricted from giving a diagnosis linking the illness to abuse.

Subsequent allegations by X against P, a nursing assistant, included sexual abuse during hospitalisation, which led to P's trial and acquittal in 2017. Additionally, X made allegations in 2016 against an unidentified individual involving violent sexual acts. The CCRC considered these after-trial developments relevant to the safety of the appellant's convictions.

Further disclosures revealed X's history of trafficking, multiple identities, and ongoing mental health difficulties, including episodes of severe distress and self-harm, which prosecution counsel conceded were indicative of serious mental illness at relevant times.

Legal Issues Presented

1. Whether the new material undermining the complainant's credibility and reliability raised a real possibility that the Court of Appeal would find the appellant's convictions unsafe.
2. Whether the appellant should be granted leave to appeal on the ground that disputed and inadmissible expert opinion evidence was admitted at trial, and the appellant was denied the opportunity to call a medical expert in response.
3. Whether the prior misdirection identified by the Court of Appeal regarding the cruelty by neglect count impacts the safety of the convictions overall.

Arguments of the Parties

Appellant's Arguments

• The credibility of the complainant (X) is substantially undermined by new material, including allegations against P and an unidentified person, which were not known at the time of trial.
• The complainant's failure to disclose abuse by P during the appellant's trial was deliberate, affecting the reliability of her evidence.
• Ground leave evidence and nursing notes contradict X's allegations about being on ground leave alone with staff, undermining her testimony.
• The medical evidence of Dr Atkin was disputed and inadmissible, and the appellant should have been allowed to call a medical expert to rebut it.
• The diagnosis of Complex PTSD given by Dr Atkin was wrong based on medical advances since the trial.
• The social/romantic relationship between P, X, and X's mother was concealed and relevant to X's motive and credibility.

Respondent's Arguments

• The new allegations against P and the unidentified individual do not necessarily undermine the appellant's convictions as X's credibility was assessed by the jury within a carefully controlled trial framework.
• The nursing notes are not sufficiently detailed or contemporaneous to disprove X's evidence about ground leave or limb manipulation.
• The approach of clinicians to safeguarding did not depend on determining credibility of abuse allegations.
• The prosecution's expert evidence was limited to factual matters and symptoms, not diagnosis or linking illness to abuse, in line with the trial judge's ruling.
• The acquittal of P does not imply disbelief of X's allegations, only that the jury was not sure of guilt beyond reasonable doubt.
• The appellant's case was not prejudiced by lack of knowledge of P's relationship with X's mother.
• X's mental illness and subsequent extreme allegations do not retroactively undermine her competence or reliability at trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the centrality of the complainant's evidence to the prosecution case and the extensive opportunity the jury had to assess her credibility and reliability during trial. It noted the complainant's complex and fluctuating mental health history but found that the trial judge correctly ruled on her competence to give evidence under statutory provisions.

Regarding the new allegations against P and another unidentified individual, the Court considered the CCRC's view that these matters could undermine the complainant's credibility. However, it found that the nursing notes and contemporaneous records cited by the appellant were neither sufficiently detailed nor consistent to discredit the complainant's evidence about ground leave or limb manipulation. The Court also found the appellant's submissions about the social/romantic triangle and its impact on credibility unpersuasive.

The Court reviewed the trial judge's ruling on the admissibility of expert evidence from Dr Atkin, concluding that the evidence was limited to factual matters and symptom description, excluding diagnosis linking abuse to mental illness. The Court examined the transcript portions relied upon by the appellant and found no breach of the trial judge's directions or prejudicial use of expert evidence.

The Court rejected the appellant's contention that the 2014 Court of Appeal decision was made per incuriam due to the absence of a transcript, finding no merit in reopening the matter. It also rejected the argument that medical advances undermined the diagnosis given at trial.

Overall, the Court was not persuaded that the new material or the appellant's grounds undermined the safety of the convictions, noting that the jury had been appropriately directed to exercise caution in assessing the complainant's evidence.

Holding and Implications

The Court DISMISSED the appellant's appeal and refused the application for leave to appeal on the expert evidence ground.

The direct effect is that the appellant's convictions and sentence stand as previously determined. The Court did not set any new precedent or alter existing legal principles but affirmed the correctness of prior rulings on competence, expert evidence admissibility, and the assessment of credibility in complex cases involving complainants with mental health issues.