{"id":813822,"date":"2026-05-02T06:44:02","date_gmt":"2026-05-02T04:44:02","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/dinc-r-v\/"},"modified":"2026-05-02T06:44:02","modified_gmt":"2026-05-02T04:44:02","slug":"dinc-r-v","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/dinc-r-v\/","title":{"rendered":"Dinc, R. v"},"content":{"rendered":"
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(i) H's account; (ii) evidence of H's complaint to his mother and older brother that same evening; (iii) DNA analysis of the appellant's underpants that revealed the complainant was a\u00a0contributor to a\u00a0mixed DNA profile in saliva recovered from the inside front of the underpants; (iv) the appellant's lies to the police denying sexual contact with the complainant, that were only retracted when the DNA analysis became available; (v) confirmation from K, a\u00a0friend of the complainant, of H's account of a conversation at the cafe in which the appellant asked H if he had a\u00a0girlfriend and appeared shocked when H said that he was gay. The defence case as set out after receipt of the DNA analysis was that the sexual activity was instigated by H and that the appellant stopped what was happening the moment he recovered from his shock. The appellant gave evidence that the complainant kissed him, put his fingers in his own mouth and then placed his fingers down the appellant's trousers and touched his penis. The defence relied specifically upon the following: (i) agreed scientific evidence that the finding of saliva inside the appellant's underpants could be accounted for by the appellant's or the complainant's account, and neither explanation was more likely from a scientific perspective than the other; (ii) agreed evidence of the complainant\u2019s behaviour. This included evidence that he had exposed himself to others, enjoyed shocking people to get a\u00a0reaction, made up stories to get sympathy or interest, mixed truth with fantasy, made unsolicited sexual advances towards other boys, had exposed his penis to other students, had received pornographic photographs from an\u00a0adult male online, had discussed inappropriate sexual matters with others and had made false disclosures of sexual activity with another schoolboy. The Judge\u2019s Rulings The judge was invited to rule on applications made by Mr\u00a0D'Souza for the defence under section\u00a041(3)(a) of the Youth Justice and Criminal Evidence Act 1999 and the provisions of section\u00a0100 of the Criminal Justice Act\u00a02003. The judge had the benefit of full written submissions from the parties and a\u00a0considerable body of material on H from medical and school reports. She first identified the issue at trial as whether H had made a\u00a0false allegation rather than consent. She ruled that evidence could be adduced in relation to incidents and findings between February\u00a02010 and February\u00a02016 when H was aged between nine and 15. They were agreed by the parties and put before the jury in very full admissions. Summary of the admissions (i) H had an\u00a0autistic spectrum condition; autism is a\u00a0life-long developmental disability that affects how a\u00a0person communicates and relates to other people, and how they make sense of the world around them. (ii) H was emotionally volatile lacking age-appropriate social skills and liable to misinterpret situations. (iii) A consultant psychiatrist, Dr\u00a0Cassell, who had seen H on several occasions over the years stated in a\u00a0letter dated February\u00a02010 that H liked to shock others, would say abusive and or inappropriate things and make up stories in order to gain sympathy or interest. She noted concerns expressed by social workers and others about H being a\u00a0\u2018fantasist\u2019 and mixing truth with fantasy. (iv) In 2013 a young girl reported that H had exposed his penis to her during a\u00a0Skype call, requested that her boyfriend provide him with pictures of his penis and told her that he stored on his telephone a\u00a0number of pictures of males showing their penis erect. (v) In 2013 a\u00a0school staff member reported that H had exposed himself to a\u00a0student whom we shall call J and H's mother had reported that H was using a\u00a0social networking site, Jingu, to communicate with an\u00a0adult male. He stored the man\u2019s number in his phone contacts, appeared to make arrangements to meet and received photographs of the man's genitalia. H also used a\u00a0gay dating site called Grindr and communicated with men on that site. (vi) In 2014\u00a0H shared a\u00a0taxi to school with two other boys, "J2" and "E". The both complained that H had touched them inappropriately during the journey and showed them explicit sexual images. J2 reported that H had asked J2 to expose himself to a\u00a0friend of H on FaceTime. In\u00a0December\u00a02014, E's mother complained that she was unhappy with her son travelling in a\u00a0taxi with H because he showed her son inappropriate images on his telephone and talked about inappropriate sexual matters. (vii) In 2016, H complained to a\u00a0student well-being officer that he had engaged in sexual activity with another schoolboy, R. He claimed that he had "tossed off" R. The school investigated and contacted the police. In February\u00a02016 an\u00a0officer spoke to H for over an\u00a0hour, during which H did not persist in his assertion he had engaged in sexual activity with R. The incident with R was summarised as "[H] had made these false disclosures about sexual activity with [R] some three weeks before he gave evidence in the present case". Incidents\/behaviour excluded The judge refused to allow the defence to adduce or ask H about four other incidents indicative of sexualised behaviour, when H was aged seven or eight, on the basis they were too long ago and there was better evidence of his recent sexualised and inappropriate behaviour. They were: (i) H demonstrated sexual awareness by rubbing himself against the carpet and putting his hands down his underpants; (ii) H "sexually assaulted" a\u00a0girl by rubbing up against her; (iii) H talked about "humping" and regularly pushed girls down and lay on top of them, thrusting his body; (iv) H stood up in class and claimed that when he was angry he "sucked his brother's willy". She further excluded: (i) evidence of an\u00a0incident in which H, aged 12, exposed himself to a\u00a0pupil at school deeming it as \u2018unremarkable\u2019; (ii)H\u2019s description of an incident with a\u00a0taxi driver in 2014, on the basis that it was far from clear H was describing anything sexual and that what he said was untrue; (iii)H\u2019s references to school friends to his having been raped when much younger and his asking them if they had been raped. This too was excluded on the basis that H was probably telling the truth. Appeal Ground 1: the prejudicial effect of the judge\u2019s rulings Before us this afternoon, Mr\u00a0D'Souza has advanced similar submissions to those advanced before the trial judge. He insists that the exclusion of the incidents on which he wished to rely was to give the jury a\u00a0misleading impression of the complainant. He criticised the judge for placing \u2018excessive weight\u2019 on the age of four of the incidents excluded, as opposed to their potential relevance to the defence and for failing to allow him to put a long standing pattern of H\u2019s sexualised behaviour and fantasising before the jury. Had the jury known the extent of H's problems and how deep-seated they were, it is said that this might have affected their attitude to H and their assessment of his credibility. Furthermore, he complains that the admissions were \u2018undermined\u2019 when, at the resumption of the trial in\u00a0August\u00a02016, he cross-examined H's mother. He decided, for reasons that escape us, to explore with H\u2019s mother some of the incidents that featured in the admissions. Not surprisingly, H's mother was protective of H and maintained that H had grown out of the behaviour described and\/or that the incidents were fabricated or exaggerated. Mr\u00a0D'Souza took exception to this and argued that the cumulative effect of the mother\u2019s evidence and the judge\u2019s curtailing of defence cross-examination at the ground rules hearing substantially prejudiced the defence. He accused the judge of letting the trial \u2018go off the rails\u2019 and claimed he was "ambushed" by the judge's earlier rulings. Ground 2: the impact of the judge's questioning of the appellant Towards the very end of the appellant's evidence the judge asked two questions. She referred the appellant to photographs of his underwear showing the stain in which H's DNA was found and asked this: "Q. From your explanation of what [H] did to you that night in the cafe, have you any explanation as to why his saliva ended up staining an\u00a0area 25.5\u00a0centimetres tall and 12\u00a0centimetres across? A. After he wet his hand, lift his hand, he put his hand, (?I\u00a0repeat it again), inside my trousers, how much he touch, when he touch, I\u00a0wouldn't know. Q. Did you at any time that evening have an\u00a0erection? A. I\u00a0don't remember." The transcript shows that the judge did not ask the appellant, as was suggested in the grounds of appeal put before the single judge, whether he had washed his penis after H had left the cafe. After these questions the judge adjourned for the day and the jury left court. Mr\u00a0D'Souza immediately complained to the judge about her questions. He understood the effect of them was to elicit from the appellant an admission that he had no explanation for the DNA stain. The judge agreed the question had been unfair. She immediately recalled the jury so that they would not be left overnight thinking of her questions and the answers. She reminded the jury of the conclusion of the forensic scientist, as set out in the admissions, that the scientist's findings in relation to the underwear "could be accounted for by either version of events [H's or the defendant's], and she was not able to determine which of the explanations is more likely". She told the jury that in the light of those findings it had not been fair of her to ask the appellant how he could explain the DNA findings. Having directed the jury in these terms, she asked Mr D\u2019Souza if he wanted her to do more. He did not and expressed his gratitude for her approach and for her directions. He then had overnight to reflect, and the next morning the trial continued. Nonetheless, complaint is now made about the judge\u2019s questions which Mr\u00a0D'Souza described as \u2018loaded and unduly prejudicial\u2019. The exact terms of the admission as to the scientific findings on the DNA were said to be crucial to the defence, and the judge's questions cast the admission into doubt. Furthermore, the judge's questions were predicated on the basis that all the saliva came from the complainant and this was not the effect of the evidence. Ground\u00a03: false impression As originally drafted ground 3 contained another criticism of the judge in that she had left the jury with a\u00a0false impression of H by reminding them in the summing-up that they had heard about the complainant "warts and all". However, Mr D\u2019Souza was forced to abandon that ground when it became apparent that the judge never used such an\u00a0expression. He then sought to add a different ground that prosecuting counsel, Mr\u00a0Barry, had left the jury with a\u00a0false impression of H because he had used the expression "warts and all" in his closing speech. Mr Barry said this: "You know about [H], warts and all". Mr D\u2019Souza complained that the jury had not heard about H \u201cwarts and all\u201d; they had heard only selected passages from his history. The only issue in the trial was H's credibility and whether he was a\u00a0fantasist; Mr D\u2019Souza claimed it was essential therefore that the jury were not misled as to whether or not they had heard all the evidence as to his previous sexualised behaviour and his fantasising. Conclusions Ground\u00a01 We do not accept there is any basis for complaint in the judge's rulings. She conducted the grounds rules hearing (\u201cGRH\u201d) impeccably. In appropriate cases, where the witness is young or suffers from a mental disability or disorder, advocates may be required to prepare their cross examination for consideration by the court. This applies to all cases, not just those in the section 28 pilot scheme. Underlying Mr D\u2019Souza\u2019s criticism of the process appeared to be the implicit assertion that the judge\u2019s directions to ensure the effective participation of the witness somehow prejudiced the defence as a matter of principle. They did not. There is nothing inherently unfair in restricting the scope, structure and nature of cross examination and or in requiring questions to be submitted in advance, in any case involving a child witness or a witness who suffers from a mental disability or disorder. The practice has been approved by this court on many occasions; it is the judge\u2019s duty to control questioning of any witness and to ensure it is fair both to the witness and the defendant. Far from prejudicing the defence, it is the experience of many trial judges that the practice ensures that defence advocates ask focussed and often more effective questions of a vulnerable child witness. The advocate will know precisely what the witness is going to say in chief because they will have the benefit of the pre-recorded ABE interview and can prepare fully. A list of admissions of behaviour or previous inconsistent statements that potentially undermine the complainant\u2019s credibility can be put before the jury to cover those issues on which questioning is restricted. The combination of admissions and focussed cross examination can produce a powerful defence case; more powerful that a defence advocate putting to a witness a whole series of propositions only to be met with the answers: \u201cNo\u201d, \u201cI don\u2019t understand\u201d or \u201cI don\u2019t remember\u201d. For the avoidance of doubt, nothing in the judgment in SG 2017 EWCA (Crim) 617) should be taken as undermining this approach. The court did not hold, as some commentators have suggested, that a judge should only require a list of questions in advance for the court\u2019s approval in exceptional cases. In paragraph 62 of the judgment, the court simply reminded trial judges of the potential for prejudice if a defence advocate is wrongly prevented from pursuing a legitimate line of questioning. In paragraph 63, the court declared that where a witness had no difficulty in understanding the questions, requiring an advocate during cross examination to prepare a list of questions should be regarded as an exceptional course. The witness in SG\u2019s case was not a child and did not suffer from mental disorder or difficulties. She was described as a mature and articulate young woman who, not unusually for a complainant in a sexual case, became distressed during cross examination. However, she had no difficulty in following the questioning. There was no reason to suppose that having had a break and recovered her composure cross examination could not continue in the normal way. The court held that the Recorder was therefore wrong to treat her as a \u2018vulnerable\u2019 witness who required the protection of the court, to the extent of making defence counsel submit his remaining questions to him for approval, during his cross-examination. HH Judge Tapping required the defence to submit their proposed questions in advance of cross-examination for approval, in this case, for good reason, given the complainant\u2019s age and level of difficulties. There can be no complaint about her direction in principle and there has been no complaint about any specific restrictions she imposed. Mr D\u2019Souza failed to identify any issue about which he wished to cross examine and was prevented from doing so. Nothing arose during his cross examination that he had not foreseen. Had it done, he was perfectly entitled to seek the judge\u2019s consent to ask questions not previously authorised. Judges will accord an advocate, in this position, a degree of leeway provided, of course, their request is reasonable. We turn to the excluded material. In her ruling on H\u2019s character and previous sexual behaviour, HH Judge Tapping considered a\u00a0large quantity of material. She analysed it with conspicuous fairness and care; she allowed the defence to adduce in evidence and to question H about what Mr\u00a0Barry rightly described as a\u00a0\u2018broad swathe of material and incidents which were prejudicial to H\u2019. The material included a psychiatrist\u2019s concerns dating back many years as to H\u2019s behaviour and his mixing truth with fantasy, any incidents of making false allegations where proven or likely; relevant incidents that H was sexually precocious and prone to making unsolicited and unwanted sexual advances to other males in the three years before the incident; H\u2019s inability to \u2018read situations appropriately\u2019, and any incident that significantly impacted on his credibility. The additional material that Mr\u00a0D'Souza sought to adduce would not have added significantly, or at all, to the picture of H as a\u00a0troubled boy, liable to misinterpret signals and with heightened sexual awareness that manifested itself in inappropriate sexual behaviour. The admissions from Dr Cassell's letter of February 2010 could have left the jury in no doubt that H had long standing problems. It is not true, therefore, to say that the jury would have been left with the\u00a0picture that H had a trouble-free childhood before he reached his teens. Furthermore, H's mother confirmed in her evidence that H did not understand boundaries as a\u00a0child, that he liked to shock and provoke a\u00a0reaction, and mixed truth with fantasy, albeit she felt he was \u2018growing out of it\u2019. There was ample evidence upon which the defence could advance their argument that she was wrong and the complainant had a\u00a0long and continuing history of inappropriate behaviour and fantasising. Far from undermining the admissions as Mr\u00a0D'Souza claimed, the mother\u2019s evidence arguably supported them. In any event, we note that the material about which complaint is made was elicited by Mr\u00a0D'Souza himself in cross-examination. If there was any \u2018ambush\u2019, which we do not accept, it was set by the defence. If the ground had shifted in a way that prejudiced the defence, it was always open to Mr\u00a0D'Souza to ask the judge to revisit earlier rulings, or, in an\u00a0extreme case, invite her to discharge the jury; no such applications were ever made. Accordingly, we are entirely satisfied the judge properly applied the relevant law and practice designed to strike the difficult balance between protecting the interests of a\u00a0young and vulnerable witness while ensuring that a\u00a0defendant receives a\u00a0fair trial. There was no unfairness in the judge's rulings or risk of injustice to the appellant and the exclusion of the material, taken alone or in conjunction with the other grounds, do not undermine the safety of the conviction. Ground\u00a02 In our view, the judge was overly generous in accepting her questions had been unfair. They were not prejudicial to the appellant; the appellant essentially repeated his explanation of how the complainant's saliva had been deposited on his underpants. If, as Mr\u00a0D'Souza alleged and the judge accepted, she did ask an\u00a0unfair question, she then behaved impeccably. She immediately corrected the error. She reminded the jury of the exact terms of the admission Mr\u00a0D'Souza said had been undermined, and she directed the jury that she had been unfair to the appellant in asking him for an\u00a0explanation. At that time Mr\u00a0D'Souza seemed satisfied with what the judge had done, and in our view rightly so. If there was any possibility of prejudice in the judge's questions, it had been removed. Ground\u00a03: "Warts and all" First, as we have already indicated, the judge did not use this phrase in her summing-up, it was prosecuting counsel in a \u2018forensic flourish\u2019. Second, even if the jury did not know of every \u2018wart\u2019 in H\u2019s background, they knew enough for the purposes of the trial. They knew H was a\u00a0fantasist and that he had been involved in overtly sexualised behaviour for some years; they knew he misunderstood other people and liked to shock. In her summing-up, the judge reminded the jury of his background very fairly, directing them to look at it all carefully in determining the reliability and truthfulness of H. Her summary of the material was entirely fair and balanced. If, therefore, Mr\u00a0Barry, had given the jury a\u00a0false impression of H's character or background, as Mr D\u2019Souza claimed, the judge\u2019s summing up would have corrected it. Finally, we note the powerful prosecution case against the appellant. There was DNA evidence of a\u00a0sexual encounter between an\u00a0adult and a\u00a0child. The scientist may have accepted that technically both the prosecution and the defence scenarios could account for the DNA on the inside of the appellant's underpants, but the jury may have felt that the defence scenario did not come close to an adequate explanation. On the appellant\u2019s account, H, a\u00a0child, tried to kiss him, unzipped his trousers, put his hand inside the appellant's trousers and into his underpants and all without the appellant's consent. Furthermore, he lied about what happened until confronted by the DNA evidence. It follows that this appeal was entirely unmeritorious. Far from the trial \u2018coming off the rails\u2019 as Mr D\u2019Souza put it, the judge kept the trial entirely on track; and far from criticising her, we commend her for the admirable way in which she conducted the trial. With great respect to the single judge, we do not understand why leave was granted. For all those reasons, the appeal is dismissed.<\/p>\n<\/div>\n

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Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

(i) H’s account; (ii) evidence of H’s complaint to his mother and older brother that same evening; (iii) DNA analysis of the appellant’s underpants that revealed the complainant was a contributor to a mixed DNA profile in saliva recovered from the inside front of the underpants; (iv) the appellant’s lies to the police denying sexual contact with the complainant, that…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[8238],"kji_chamber":[],"kji_year":[52833],"kji_subject":[7612],"kji_keyword":[7633,8396,7622,7621,22576],"kji_language":[7611],"class_list":["post-813822","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-court-of-appeal-criminal-division","kji_year-52833","kji_subject-fiscal","kji_keyword-appellant","kji_keyword-defence","kji_keyword-evidence","kji_keyword-judge","kji_keyword-souza","kji_language-anglais"],"yoast_head":"\nDinc, R. v - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/dinc-r-v\/\" \/>\n<meta property=\"og:locale\" content=\"zh_CN\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dinc, R. v\" \/>\n<meta property=\"og:description\" content=\"(i) H's account; (ii) evidence of H's complaint to his mother and older brother that same evening; (iii) DNA analysis of the appellant's underpants that revealed the complainant was a contributor to a mixed DNA profile in saliva recovered from the inside front of the underpants; (iv) the appellant's lies to the police denying sexual contact with the complainant, that...\" \/>\n<meta property=\"og:url\" content=\"https:\/\/kohenavocats.com\/zh-hans\/jurisprudences\/dinc-r-v\/\" \/>\n<meta property=\"og:site_name\" content=\"Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"\u9884\u8ba1\u9605\u8bfb\u65f6\u95f4\" \/>\n\t<meta name=\"twitter:data1\" content=\"18 \u5206\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/dinc-r-v\\\/\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/dinc-r-v\\\/\",\"name\":\"Dinc, R. v - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/#website\"},\"datePublished\":\"2026-05-02T04:44:02+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/dinc-r-v\\\/#breadcrumb\"},\"inLanguage\":\"zh-Hans\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/dinc-r-v\\\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/dinc-r-v\\\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Jurisprudences\",\"item\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/jurisprudences\\\/\"},{\"@type\":\"ListItem\",\"position\":3,\"name\":\"Dinc, R. v\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/#website\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/zh-hans\\\/\",\"name\":\"Kohen Avocats\",\"description\":\"Ma\u00eetre Hassan Kohen, avocat p\u00e9naliste \u00e0 Paris, intervient exclusivement en droit p\u00e9nal pour la d\u00e9fense des particuliers, notamment en mati\u00e8re d\u2019accusations de viol. 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