Title: Court of Appeal Judgment Template
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Neutral Citation Number: [2012] EWCA Crim 19
Case No: 2009/6143/C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
His Honour Judge Roberts
T20087711
Royal Courts of Justice 
Strand, London, WC2A 2LL
Date: 26/01/2012
Before:
LORD JUSTICE MOSES 
MR JUSTICE BURNETT 
HIS HONOUR JUDGE SCOTT-GALL

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Between:
The Crown	Appellant
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PD	Respondent

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Mr R Hearnden (instructed by Mordi & Co) for the Appellant 
Ms Neena Crinnion (instructed by The Crown Prosecution Service) for the Respondent

Hearing dates: 16^th December, 2011
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Judgment

Lord Justice Moses:
1.	This appeal raises the question as to whether the failure of the trial judge to give a modified direction as to the appellant’s character rendered his conviction of anal rape against his wife unsafe. It also raises an issue as to whether the appellant was deprived of a fair trial because of a late change of the dates when the offences were alleged to have been committed.
2.	The prosecution alleged that during the course of their marriage the appellant had treated his wife with violence. There were four counts alleging assault occasioning actual bodily harm between August 1999 and December 2006. The jury convicted the appellant of all four. His wife alleged that he had pulled her hair, screamed at her and head-butted her on the nose (Count 1), pulled her hair with such force that a patch fell out (Count 2), pulled her downstairs by her hair, punched and kicked her and squeezed her throat (Count 3) and when she refused to have sex with him, kicked her in the back and forcibly took her upstairs (Count 4).
3.	But by far the most serious allegations, which are central to this appeal, arose when the appellant told his wife that he had had an affair or “a one-stand stand” with a Russian doctor. Apparently his wife responded by telling him that she herself had had an affair. On hearing that admission, the appellant told her that her that she must be punished, by forcing her to have anal sex. When she protested and refused and offered to have normal sexual intercourse with him, he penetrated her anus with his penis. He behaved in the same way for the following six nights. After the seventh occasion he said that she would be forgiven and that they could resume their live on a normal basis. The jury convicted the appellant of those anal rapes alleged in Counts 5-11 of the indictment.
4.	It is relevant to this appeal to record that the appellant was also convicted of intimidation. After the rape the complainant and her children moved into a refuge where her hat disappeared. It was later returned to her by post in a parcel addressed to the refuge. The appellant confessed that he was responsible and that he wanted to prove that he could “get to” the complainant if he wanted to.
5.	The allegations only came to light when, in February 2008, the complainant reported to the police that the appellant had sexually assaulted their daughter. She made no reference at that stage to the rapes but subsequently disclosed that she had been raped in October 2007. The appellant was acquitted of the sexual assault on his 7 year-old daughter.
6.	Part of the prosecution disclosure consisted of a psychiatric report describing the history given by the complainant when she visited the psychiatrist in January 2007. During the consultation with the psychiatrist she referred to her husband’s anger following her confession of an affair. Since it was her allegation that the anal rapes were punishment for her affair it appeared that she was mistaken in suggesting that the rapes had occurred in October 2007. If they occurred, it seemed it must have been in 2006.
7.	The defendant denied that he had anal sex with his wife during October 2007, although he did admit that he had consensual anal sex with her at the end of 2006, as part of the process of reconciliation. The statement continued to assert that he had been travelling abroad to Kenya, Tanzania and Uganda without his wife in early October 2007. He said that he had injured his knee in Uganda, returned to this country in severe pain, and had had a minor operation in November 2007, with a more major operation in February 2008. The Crown had the appellant’s passport and was, therefore, in a position to confirm those dates. They were not disputed. No application was made to amend the indictment before the trial began.
8.	It was only during cross-examination that the complainant was prepared to accept that the anal rapes she alleged must have occurred in October 2006.
Directions as to Character
9.	In his directions to the jury, His Honour Judge Roberts gave no directions at all in relation to the appellant’s character. The appellant was a man, at that time, of 46, who had no previous convictions. Before counsel addressed the jury, counsel then acting for this appellant, sought what she described as “a hybrid direction on good character” because, during the course of the evidence, the defendant had admitted violence in the course of the marriage. She pointed out that apart from that admitted violence the appellant had no previous convictions for sexual matters. The judge replied:-
“Yes, I am entitled to remind the jury that he has no previous convictions for sexual offences. It purely goes to propensity, it cannot go towards anything else.”
No response is recorded from the prosecution. It is apparent that both counsel expected the judge to direct the jury as to the absence of any previous conviction for a sexual offence but not to direct the jury in relation to credibility. But, as we have recalled, the judge gave no direction whatever.
10.	It is necessary to identify the reasons why counsel suggested that the character direction should be qualified. In his interview, the defendant had described himself as “a man of non-violence”. The prosecution suggested that that was untrue. The appellant sought to describe his religious belief in non-violence, but said he was a human being and sometimes, when the marriage was stressful, there was a limited use of violence. But he denied that it was to the degree alleged by the prosecution. He did however admit physical violence after the birth of his three children “when my wife basically was out of her mind”. He said there were occasions of slapping and when it was suggested that he had punched and kicked her he said that he had not used a weapon. He admitted pulling her hair and that his sister-in-law may have seen marks after he had put his hand around his wife’s neck.
11.	The defendant also gave evidence about the use of charitable money to pay for him and his family to stay at the Holiday Inn, although it was apparently intended that he and his wife should travel to South Africa to work as missionaries. It also emerged that he had sub-let rooms in his house to raise cash to fund his travel whilst claiming benefits. For those reasons, coupled with his limited admissions as to violence, his counsel and the judge agreed that he was not entitled to directions relating to credibility. However, it was intended that some directions should be given in relation to the absence of any previous conviction for sexual offences. This, so the judge appeared to have agreed, was relevant to the question as to whether he had any propensity to commit the anal rape and whether the absence of any evidence of propensity demonstrated that it was less likely that he would have committed it on the consecutive nights as alleged by his wife.
12.	Mr Hearnden, who did not appear below, now contends that the judge ought to have given directions in favour of the appellant, both in relation to propensity, and credibility. In careful and cogent submissions he rejects the proposition that this was a rare case where the judge was entitled to exercise his residual discretion to decline to give any character directions. On the contrary, he should have directed the jury as follows:-
“The defendant is 46 years old and has no previous convictions for any crime. The defendant also told you about how he had risked protesting against the Apartheid government in South Africa, and that he had to leave his homeland as a result. He also told you about his charitable and voluntary work.
However, you have heard that he used violence on occasions against Mrs D during their marriage and that, once he may have given her a black eye. However, he also points out that he has never been accused of or convicted of a sexual offence before now. When considering the counts of rape, you should take this into account in his favour in the following way. The fact that he has never offended before may make it less likely that he would have committed the offences of rape. Second, the fact that he has no convictions for any offence is something you should take into account when assessing whether you believe he has told you the truth. Good character cannot, of course, amount to a defence.”
The principles which should be applied are those set out in The Crown v Vye [1993] 97 Cr App R 134, in R v Aziz [1996] AC 41, R v Doncaster [2008] EWCA Crim 5 and R v Gray [2004] EWCA Crim 1074. The judge is not required to give a meaningless or absurd direction. He is not required to go through the charade of giving directions in accordance with Vye where the defendant’s claim to good character is spurious (see per Lord Steyn in Aziz at page 53). Even where he has been shown to be guilty of criminal conduct and thus cannot pray in aid absolutely good character, the “prima facie” rule of practice is to qualify the Vye direction rather than withhold it (see R v Gray paragraph 57(4)).
13.	The essential argument advanced by the Crown is that the appellant was neither entitled to a direction relating to the absence of previous convictions for sexual offences nor any directions as to his credibility. It is plain, Miss Crinnion submits, that the purpose of the rapes was not sexual gratification but rather to treat the complainant with violence by way of punishment. This submission she supports by reference to a curious feature of the evidence. In August 2008 the appellant published on the internet a description of anal rape written on 7 August 2008 which was exhibited before the jury. He wrote of a husband being anally raped and described it as “the ultimate punishment for somebody”. This article was written before his wife reported the rape to the police. In cross-examination the appellant suggested that his wife would have had a chance to read it before she made her statement to the police in October 2008. The article does demonstrate a belief by the appellant that anal rape was a punishment. It is consistent with the allegation made by his wife. It is a curious coincidence that he should choose to write such an article before his wife had made any complaint to the police and before, accordingly, he could have had any idea that she might do so, false or not.
14.	Nonetheless, whilst it is powerful evidence that the complainant is telling the truth, it does not seem to us to justify a failure to point out to the jury that the appellant had no previous convictions for sexual offences and that that was a factor to be taken into account in his favour in considering whether it was likely that he would, for the first time in his life, have committed these offences for rape. It is true that the fact that he was writing of rape as a punishment, and that his wife alleged that the rape was a punishment for her confession to adultery, undermined any reliance the defendant might place upon his absence of conviction for previous sexual offences. But the fact that the effect of a good character direction might be undermined by the facts of a particular case provides no warrant for declining to give any such direction. There will be many cases where a defendant is entitled to a good character direction but the weight to be given to it is diminished by the facts or circumstances of the particular case. There is no principle that a judge is justified in declining to give a good character direction merely because he foresees that the prosecution may be able to diminish its fact. It was for the jury, not the judge, to decide what weight to give the absence of previous convictions.
15.	Moreover, it is clear that the judge took the view that the appellant was entitled to and intended to give a modified character direction. The prosecution did not demur. Defence counsel expected such direction to be given and herself relied upon the absence of previous convictions of sexual offences in her final address to the jury. Neither counsel reminded the judge of his omission.
16.	Prosecuting counsel now says that the judge’s failure to give such a direction was correct. But if the judge changed his mind and had decided not to give any such direction then he should at least have warned defence counsel and sought further submissions, rather than leaving her with the impression that he agreed with her proposal. In our view, the appellant was entitled to a modified character direction to the jury that it should take into account, in the defendant’s favour, the absence of any previous convictions for sexual offences as indicating that it was less likely that he would have committed the offences of rape. His failure to do so was a serious misdirection.
17.	Accordingly, we have to consider whether the convictions for anal rape were safe. Counsel for the appellant was not able to identify any case where, in the face of a failure to give any character direction, this court nonetheless has reached the conclusion that the verdict was safe. It may be possible to envisage such a case where the character of the appellant casts no light upon the defendant’s guilt or innocence. But this is not such a case. Ultimately, the dispute turned on the complainant’s word against that of this appellant. This court has said on a number of occasions (for example, in Doncaster and in R v M [2009] 2 Cr App R 3) that the character directions are of particular importance where the verdict turns on whether a complainant or a defendant is believed.
18.	This was, in our view, a strong case. The emergence on the internet of an article describing anal rape as a punishment written by the appellant was powerful evidence of his use of anal rape as a punishment, as his wife alleged. But we are quite unable to say that the verdicts are safe despite the omission of the judge. He thought that a character direction could be given without absurdity and without indulging in a charade. This court from time to time has emphasised the importance of a trial judge’s own assessment of what fairness in a trial demands. It would be inconsistent with the importance attached to a trial judge’s “feel for a case” to take the view that a modified character direction was unnecessary and would have made no difference in the light of the judge’s own view that he ought to give such assistance to the jury. For those reasons, we take the view, reluctantly, that the verdicts of anal rape in this case were unsafe. We say we do so reluctantly because the conclusion we have reached does not reflect upon the credibility of the complainant from whom, of course, we have not heard. The failure of the judge, and for that matter, of counsel on both sides, to make good the omission, was no fault of the complainant. It is most unfortunate that, subject to any submissions, she may be compelled to go through the ordeal of revisiting events of violence yet again.
19.	Since we have allowed the appeal on the first ground, there is no need to consider the second. This related to the amendment of the indictment to enlarge the period relating to the allegations of rape so as to include October 2006 when, finally, the complainant appeared to accept that the anal rapes must have occurred. Counsel for the appellant was criticised for her failure to seek an adjournment. She has explained why she did not do so and, in our view, no unfairness whatever resulted from the amendment after the complainant had given her evidence. We do not deal with the matter in greater detail because it is unnecessary to do so. For the reasons we have given, we shall allow the appeal and await written submissions as to whether there should be a re-trial on those counts alleging rape.