YAW, R. v

Factual and Procedural Background

The Appellant appealed, with the leave of the single judge, against his conviction for raping his daughter (the Complainant). The Complainant is protected for life by the Sexual Offences (Amendment) Act 1992, and the court directed that the Appellant's name should be anonymised in listings and reports.

The Appellant was tried in the Crown Court at The City before Judge Newton Price and a jury. The Complainant, aged 21 at the material time, attended the Appellant's home to collect her younger brother. Her evidence was that she sat beside the Appellant on a sofa and showed him images on her phone. The Appellant snatched the phone and scrolled through its contents, which included intimate images of the Complainant and her partner. The Complainant gave evidence that the Appellant then grabbed her breast, kissed her, removed some clothing, touched her vagina, put his hand over her mouth and raped her vaginally from behind.

The Complainant made an audio recording on her mobile phone shortly after the incident. The recording, accepted as genuine at trial, lasted just under four and a half minutes and included the Complainant saying "No" 18 times, "Stop" four times and "Dad" six times. She managed to get away and reported the incident promptly to her partner, a friend and then the police.

The Appellant admitted having sexual intercourse with his daughter and pleaded guilty to the offence of sex with an adult relative contrary to section 64 of the Sexual Offences Act 2003. He pleaded not guilty to the charge of rape. His defence was that the sexual activity was consensual (or that he honestly believed that she was consenting). He accepted that the recorded words on the audio were those used by the Complainant but maintained that her actions and reactions demonstrated consent or led to an honest belief in consent.

The defence sought to adduce evidence, under section 100 of the Criminal Justice Act 2003, of four previous occasions on which the Complainant was said to have made false allegations of sexual offences. The trial judge refused the application. No challenge was advanced in relation to three of those occasions; the appeal focuses on the single incident relied on by the Appellant in the ground of appeal.

That incident, as recorded in a police occurrence log, concerned an allegation made in May 2018 by the Complainant (then aged 17) that she had been raped by the father of her child (referred to in the trial material as Individual X). The log included, among other entries, reports that:

• the Complainant reported that Individual X had come to the Unit where she was residing and had raped her;
• the log recorded inconsistencies in the Complainant's accounts as to the circumstances and form of penetration, and noted that she had declined the offer of emergency contraception at the Referral Centre;
• a witness (referred to in the material as Witness R) reported hearing the Complainant arguing on the phone with Individual X and then saying words to the effect "Well, that's it then, I'm going to f**k him over. I've called the police, they're coming to take a report of rape. When they get here, can you wake me up";
• the Complainant had initially not mentioned sexual assault to her mother and had given inconsistent details about date and location when she later complained; and
• there were also inconsistencies in what she said to her sister about date and location.

The trial judge decided that the defence application was to be determined under section 100 of the Criminal Justice Act 2003 and that section 41 of the Youth Justice and Criminal Evidence Act 1999 was not engaged. The judge concluded that, although the log showed inconsistencies and a remark to Witness R that suggested anger towards Individual X, those features (in the context of an allegedly violent and abusive relationship involving a 17 year old complainant with a newborn baby) did not provide a sufficient basis for a proper conclusion that the earlier allegation was false. The judge therefore refused the application. He added that, even if he had reached a different view on falsity, the evidence would not have had the substantial probative value required by section 100(1)(b) because the present case involved an admitted sexual intercourse and a clear audio recording relevant to consent and reasonable belief in consent.

Legal Issues Presented

1. Whether the trial judge erred in concluding that there was not a proper and/or sufficient evidential basis from which a jury could properly conclude that the Complainant's previous allegation against Individual X was false (ground 1).
2. Whether the trial judge erred in concluding that evidence relating to a previous alleged false allegation of rape did not have substantial probative value in relation to issues in the trial and was therefore inadmissible under section 100(1) of the Criminal Justice Act 2003 (ground 2).

Arguments of the Parties

Appellant's Arguments (Attorney White)

• Attorney White accepted that the jury would require proper directions on how to approach evidence that the Complainant had made a false allegation and accepted that inconsistency alone would not suffice; however, she submitted that the combination of inconsistencies in the Complainant's accounts and the remark reported to Witness R could properly lead a jury to conclude that the earlier allegation was untrue.
• Attorney White accepted that the material might be open to more than one interpretation, but argued that if the occurrence log was capable of supporting a proper finding of falsity by the jury, it should have been admitted.
• As to probative value (ground 2), Attorney White submitted that, despite differing circumstances between the two incidents, both involved non-consensual penetrative sexual activity. If the jury concluded that the earlier allegation against Individual X was false, that would indicate a willingness by the Complainant to make a serious false allegation against someone in a close relationship, which was relevant to the Complainant's credibility in the present case.

Respondent's Arguments (Attorney Wing)

• Attorney Wing opposed the appeal, submitting that the trial judge had correctly applied the relevant principles from the case law and reached the correct conclusion. He submitted that ground 1 should fail and that the appeal should be dismissed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court set out the statutory framework: section 100 of the Criminal Justice Act 2003 governs admissibility of non-defendant bad character evidence and requires, for admission under subsection (1)(b), that the evidence have substantial probative value in relation to a matter in issue that is of substantial importance in the context of the case; the court must assess probative value having regard to factors such as the nature and number of events, when they occurred, and the similarities and dissimilarities if similarity-based reasoning is advanced. Section 41 of the Youth Justice and Criminal Evidence Act 1999 restricts evidence or questioning about a complainant's sexual history, and the court noted the interaction between sections 100 and 41 where previous allegations of sexual offending are concerned.

The court accepted the summary of authorities in R v Case A and related authorities and emphasised that the admissibility decision is highly fact-specific and that the judge is making an evaluative determination rather than exercising a mere discretion. The court also emphasised the need for caution before admitting inquiry into a complainant's prior allegations where the proposed cross-examination would be directed to credit and thereby introduce a satellite issue without real foundation.

Applying those principles to the material relied on by the Appellant, the court observed that the prosecution's application rested on a police occurrence log which, when stripped of comment or compiler opinion, mainly contained hearsay reports of inconsistent statements by the Complainant and a hearsay report of the remark to Witness R. The judge had correctly noted that in the context of a young complainant reporting sexual offending by a partner or former partner, inconsistencies, delays in reporting and expressions of anger are common and can be consistent with a true complaint. The log did not contain any indication that the Complainant herself had ever said that the earlier allegation was untrue, nor that Individual X had been questioned about it.

The court concluded that the trial judge's evaluation — that the material did not provide a proper evidential basis from which the jury could properly conclude that the earlier allegation was false — was reached on an appropriate appraisal of the evidence. The court also accepted the trial judge's further, alternative reasoning that even if falsity had been arguable, the earlier allegation would not have had the substantial probative value required by section 100(1)(b) in the context of this case (in which the Appellant admitted intercourse and there was an audio recording relevant to consent).

Holding and Implications

APPEAL DISMISSED; THE CONVICTION IS UPHELD.

Holding: The court found that the trial judge did not err in refusing the defence application to adduce evidence from the police occurrence log; ground 1 fails. Because ground 1 failed, ground 2 was not argued further and did not arise. The court was satisfied that the Appellant's conviction was safe and dismissed the appeal.

Implications: The direct consequence of the decision is that the Appellant's conviction for rape is affirmed and remains in force. The court applied and endorsed existing authorities governing admissibility of prior false allegations in sexual cases (including the principles summarised in R v Case A and the requirement of a "proper evidential basis" as explained in R v Case C). The opinion did not establish a new legal test but reinforced that admissibility decisions are fact-specific and that appellate courts should give considerable deference to the trial judge's evaluative judgment on such matters.