We have written a number of times over the evolution of the law on how to deal with deceased complainants under the hearsay provisions and this interesting case adds a new dimension although ultimately the Court reinforced the principles of Riat firmly apply.
In this case two appellants were convicted of sexual offences and one of the Complainants had died by the time the case came to trial.
The Judge applied the principles in Riat and evaluated the arguments over whether the accounts of the deceased complainant were so unreliable that the counts should be withdrawn under Section 125 of the CJA 2003.
The Judge concluded that he was not so satisfied, this included a peculiar feature in that a “sex tape ” had been found showing one of the appellants engaged in sexual activity with a male who could not be identified and the deceased complainant had asserted it was him until it transpired in the face of other evidence that he may have been mistaken to say the least.
This raised the spectre of whether the deceased complainant had lied, and this led to an argument as to withdrawal under Section 125. The Trial Judge in rejecting the argument noted:
“…..There are myriad supporting areas of evidence which satisfy the Riat test. Given that conclusion, the primary defence submission fails.”And even considering if it was accepted the complainant had lied the Judge noted that:
“…..does that mean everything he has said before that lie has to be disbelieved? The answer to that question is no. The sex tape is an important issue in this trial but it is not determinative. The test is that set out in section 125. Is the hearsay so unconvincing that I ought to stop this case now? The answer is no.”The Court of Appeal agreed with the Judge noting that it was for the Jury to determine whether the deceased witness was merely mistaken or lying. Interestingly the Court also supported a decision to allow the Crown to call expert evidence to rebut the defence argument that there was no proof the unknown male in the video was not engaged in consensual activity, noting that there was a prima facie case that a man engaged in sexual activity and not moving a muscle for 8 minutes could amount to a sexual assault.