Galbraith, R. v

Factual and Procedural Background

This appeal arises from a conviction in the Crown Court at Manchester where the Appellant, aged 51 at the time of conviction, was found guilty by a majority verdict of assault by penetration, sexual assault, and attempted rape occurring in July 2019. The complainant was a part-time waitress in her early 20s working under the Appellant, who was her manager at the time. The events followed a night out involving alcohol and culminated in an incident at a hotel where the Appellant was alleged to have assaulted the complainant while she was intoxicated.

The Appellant was acquitted of one charge of sexual assault relating to an earlier incident at work. He was sentenced to 7 years and 5 months' imprisonment with a surcharge ordered. The appeal concerns the judge's ruling under section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) regarding the admissibility of evidence about the complainant’s past sexual history, specifically relating to a prior consensual choking incident. The complainant was granted lifelong anonymity under the Sexual Offences (Amendment) Act 1992.

Legal Issues Presented

1. Whether the trial judge erred in refusing to grant leave under section 41 of the YJCEA 1999 to cross-examine the complainant about a prior consensual choking incident as part of the defence case on consent.
2. Whether the refusal to admit such evidence rendered the conviction unsafe.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that the judge should have allowed questioning about the complainant’s prior consensual choking experience because it was an unusual and conspicuous feature that directly related to the issue of consent.
• He submitted that the prior incident was sufficiently similar to the alleged choking in the current case to have substantial probative value, supporting the defence that the complainant may have instructed the choking.
• Reliance was placed on paragraph 135 of R v A (No 2) [2001] UKHL 25, emphasizing that the similarity needed to admit such evidence could be "in any respect" under section 41(3)(c)(i) of the YJCEA 1999.
• The Appellant contended there was no need to prove whether choking during sex was usual or unusual generally in order to admit the evidence in these circumstances.

Respondent's Arguments

• The prosecution submitted that the two choking incidents were materially different and thus did not meet the criteria for admission under section 41.
• They emphasized that the prior choking occurred within a consensual sexual relationship but was not requested by the complainant, whereas the incident in question involved allegations of force and lack of consent.
• The prosecution maintained that the similarity was no more than coincidence and that the judge’s refusal to admit the evidence was correct.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the statutory framework of section 41 of the YJCEA 1999, which restricts evidence or questioning about a complainant’s sexual history unless leave is granted by the court. The threshold for admission requires that the evidence be relevant to a key issue, typically consent, and that the similarity between the prior sexual behaviour and the conduct in question be such that it cannot reasonably be explained as coincidence.

The judge found that the prior choking incident described by the complainant was materially different in context and nature from the incident alleged against the Appellant. The prior choking occurred during a consensual relationship with a female partner, where the complainant had not requested choking but acquiesced, whereas the incident with the Appellant involved forceful choking during an encounter following a night of heavy drinking with a male employer with whom she had no prior sexual relationship.

The judge concluded there was no evidential basis to treat the two events as sufficiently similar under section 41(3)(c)(i). The court also considered whether excluding the evidence would render the conviction unsafe and found no such risk, noting the complainant’s consistent denial of consent and the absence of any evidence that she derived sexual gratification from the choking.

The court further noted the importance of protecting complainants from humiliating questioning about their sexual history unless strictly justified by the circumstances of the case.

Holding and Implications

The appeal is DISMISSED.

The court upheld the trial judge’s decision to refuse leave under section 41 of the YJCEA 1999 to cross-examine the complainant about a prior consensual choking incident, finding that the two events were not sufficiently similar to justify admission of such evidence. The refusal did not render the conviction unsafe. This decision directly affects the parties by affirming the conviction and sentence and does not establish new precedent beyond the correct application of existing section 41 principles to the facts of this case.