Robert Halliday [2019] EWCA Crim 1457

The applicant was convicted of the rape of a drunk stranger who he picked up in his car; she assumed she thought he was a taxi. He had previously been charged with sexual assault in similar circumstances, but the prosecution had offered no evidence, and he was acquitted.

He appealed challenging the ruling to permit the prosecution to adduce the evidence of the initial complainant as bad character of the applicant. It was submitted that the decision to offer no evidence was wholly or partly based on the witness being unreliable.

Held: there were differing accounts as to the reasons why the prosecution had offered no evidence; it was not alleged that she had been condemned as a witness who was deliberately giving an untruthful account. She had been drunk and expressed doubt about her ability to remember matters, as her evidence fell to be considered in isolation, it was understandable why the prosecution made the decision. The accounts by the two complainants were very similar. In each case the applicant travelled alone to a busy area, he approached and picked up a lone, drunk female. Each female thought he was a taxi driver and was driven to a secluded area and subjected to a sexual assault. In each case the applicant said the female had consented to and actively instigated the sexual activity. The judge was correct to find the evidence was admissible as it was relevant to whether the applicant had a propensity to behave in the manner alleged, and whether the current witness account was true. Other grounds were also rejected, and the renewed applications refused.