England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		20th February 1997

MR JUSTICE HIDDEN: On 23rd May 1996 at the Crown Court at Middlesex Guildhall before His Honour Judge Fabyan Evans and a jury the appellant was convicted by a 10 to 2 majority of one count of indecent assault on a female, which was Count 2. He was at the same time acquitted of a count of rape, which was Count 1. He was sentenced to six months' imprisonment. He appeals against conviction by leave of the single judge.

The appellant and the complainant, B, were from New Zealand and had met and lived together in this country and had a son J. Their relationship ended and she had found someone else at the time that the offence was alleged to have taken place. The appellant had moved to Bristol for work reasons and had come to London to see his son and would stay at the complainant's home. He stayed there over the Christmas period of 1995, arriving on 21st December and intending to stay until 2nd January. On 29th December he made sexual advances to the complainant and according to her, contrary to her wishes, he inserted his finger into her anus. That was Count 2. Although according to her she protested and reacted violently, he then went on, she said, to rape her. That was Count 1, of which he was acquitted.

The defence case was that all, although the complainant was initially unwilling, she became passive and he believed that she was consenting to intercourse. As to Count 2 while he was engaging in foreplay before entering her he fingered the area of her bottom, but only touched her and did not intend to insert his finger into her anal passage.

The complainant gave evidence of her six year relationship with the appellant and the birth of J who was by then four and a half years old and that the relationship had ended in mid 1995. The appellant became emotionally withdrawn and she found it difficult to communicate with him. She agreed that she supposed it was hard for the appellant to know what she wanted once they had broken up. Nonetheless, he continued to visit her to see J and on his Christmas visit in 1995 the visit seemed to be going well and they had some happy times.

On the afternoon of 29th December she was feeling unwell and was lying on her son's bed and he came in to the room. He was upset and kept asking if she was seeing someone else. She told him to leave her alone but he was affectionate and began playing with her breasts. There was a struggle and she told him again to leave her alone. She went to the bathroom and got a face cloth to wipe her face. Then the appellant pulled her into the other bedroom where there was a double bed. He was cross when she refused to remove her clothes. He took them off for her, pushed her on the bed and would not let her go. He kissed her lips and vagina. She tried to kick him and scratch at him, lashing out anywhere. He played with her bottom and said, "Shall I do it up the arse?" He put his finger into her anus and she felt minor pain for a few seconds. She was clear that this was not accidental and she did not consent to it. She told him to leave her alone and may have sworn at him. He put the face cloth in her mouth because she was screaming. He lay on top of her and put his penis into her vagina. Again, she said she did not content. Then he said he was very sorry and asked her to hug him, which she did. She had a bath and he sat outside the bathroom saying he was sorry. She did not ring the police while the appellant was there although for long periods he was outside of the house trying to fix his car. She tried to stay calm. She cooked a meal for the two of them which they both ate with a glass of wine and watched television. In the early hours she telephoned her brother and said she and the appellant were not getting on and she was going to the police. She did not tell her brother that she had been raped. She called a taxi and she thought she might have told the taxi driver something about it.

The driver said she was distressed when he picked her up and when he asked her what had happened she began to cry and then said she had been raped by her ex-boyfriend.

There was medical evidence from Dr Ritchie, who examined the complainant. The doctor said there was a scratch to the lip and oval bruises to the front of her neck which were consistent with a hand held over the face. There was no injury to the appellant's vagina or anal area, no trauma to the vagina or bruises or scratches to the legs. As to the absence of any injury to the anus, Dr Ritchie said that if the finger had been inserted into the anus there would not necessarily have been any injury.

Police officers went to the house and arrested the appellant for rape. When he was cautioned he was asked if he had raped her and said "yes". He appeared contrite and was not shellshocked. He indicated the relevant bedding and the relevant clothing of the complainant and, when interviewed in the presence of his solicitor, he declined to say anything. The appellant was examined and he had no injuries. There was further evidence in relation to a letter that the complainant had received from the appellant, which was Exhibit 1. There was also evidence of a letter that the complainant had written to the prosecution authorities, and in particular to a sergeant in the case. The letter did not say that the appellant had not committed the offence, but just that she did not wish to attend court.

The appellant's case dealt with his coming to this country and meeting the complainant and the beginning of their relationship. He said that they tried unsuccessfully to have another baby. The relationship became difficult. He was in and out of work and money was tight and as a result their sex life suffered and they had sex less often and he got little response from her. He spoke of going to Bristol for a job in January 1995, but coming back at weekends to see his son. The appellant said that he and the complainant split up a few times but always got back together. They used to fight and she would kick and scratch. Communications deteriorated between them. He said that on his Christmas visit the complainant told him she was seeing someone else. Christmas, however, was a happy time although they were not sleeping together.

As to the events in question on 29th December, the appellant said that they were in the child's room and had an argument initially about money and then about a plan of hers to take the child to New Zealand. The child was elsewhere in the house. They stopped arguing and he led her to the other bedroom, the spare bedroom. She lay face down on the bed and he massaged her legs. She told him to stop. She went "passive and comfortable", as he put it, and he removed her clothing without using force. He massaged her legs again and performed oral sex on her and then put his hand between her legs. She did not punch or kick and she offered no resistance. He entered her and it was the same as early occasions when they had sex. As to when he touched her anus he said that must have been at the time his hand was between her legs. He denied saying, "Shall I do it up the arse?" He did not force anything into her mouth. There were other things that he did not remember. He did not remember hugging her afterwards.

The rest of the day was normal. He went downstairs to watch television and then went outside to sort out his car. He was outside all day and the complainant appeared normal. He agreed that they watched television and cooked a meal. He went to bed and she later stayed downstairs. He did not know anything was wrong, but she was a difficult person to read. When he was arrested for rape he remembered her saying "No, don't", while he was massaging her legs and so he said, "Yes" when asked if he had raped her. He agreed that he had written the letter to her as a result of an argument they had had on the telephone and he explained things that he had said in the letter about crazy and stupid things and matters of that sort.

Mr Henry, who appears for the appellant, takes only one point and that point is his submission that the jury's verdict on Count 2 was unsafe and inconsistent with the acquittal on Count 1. He takes as his starting point the law conveniently set out in paragraph 7.70 in the current edition of Archbold and adopts the text which says:

"An appellant who seeks to obtain the quashing of a conviction on the ground that the verdict against him was inconsistent with his acquittal on another count has a burden cast upon him to show not merely that the verdicts on the two counts were inconsistent but that they are so inconsistent as to call for interference by an appellate court. The court will interfere if it is satisfied that no reasonable jury who had applied their mind properly to the facts of the case could have arrived at the conclusion which was reached".

The case of Durante 56 Cr App R 708 is given as authority for that proposition, which stems from the words of Parker LCJ in the R-v-Hunt (1968) 2 QB 433. The text goes on:

"The principle in every case is whether the inconsistency is such that it would not be safe to allow the verdict to stand. The fact that two verdicts are logically inconsistent does not however make the verdict complained of unsafe unless the only explanation of the inconsistency must or might be that the jury was confused or adopted the wrong approach".

Mr Henry has taken us to passages in the summing-up which he draws on for support for the proposition that the complainant's account of the alleged rape was inimicable to the possibility of an honest, mistaken belief in consent. He draws attention to what is said at page 9A where the learned judge was dealing with the allegation in Count 2 and said:

"The allegation in Count 2 is that he inserted his finger up her back passage and in the circumstances he could not have believed that she consented to it and that therefore he is guilty of the second count in the indictment".

He takes us also to page 16 where the learned judge quotes from the evidence of the complainant and said that:

"He then had sex with me. He kissed my lips and my vagina. I tried to move my legs and kick him. I just wanted him to leave me alone. I kept asking him to do so. I was punching him, biting him and scratching at him".

She he goes on to give a description of lashing out in all directions to get away from the appellant, trying to push him away from her and possibly having scratched him. The complainant said that she bit him on the mouth or any where and she agreed with counsel that a long time ago she had been trained in self defence.

A further passage which need not be quoted verbatim was relied upon by Mr Henry which appears at page 17. In that passage she speaks of the appellant using a face flannel to stop the sounds of her screaming saying that she could not breath, and there was then sex to which she did not consent. The complainant said that she never consented or allowed what happened that night.

Mr Henry's submission is that it is clear that the account given by the complainant cannot have been accepted by the jury and the situation is, therefore, one where if the jury could not accept the complainant's evidence about the rape it was not possible for them to have accepted her evidence about the indecent assault. In the course of his submissions he dealt with the position of the point of time at which it was alleged that the indecent assault took place. It was his submission that it was essentially all part of the process of sexual relations which involved the act of intercourse which was charged as rape. He submitted the position would have been the same nonetheless if it had been a distinct and separate occasion. He drew attention to the differences in the accounts of the appellant and the complainant in relation to the act of assault in the insertion of the finger into the back passage.

The complainant had in a separate part of her evidence, further on from evidence of the question of rape, dealt with the allegation of indecent assault. The way the learned judge put it at page 16 was this:

"She said he got her bottom into the air and she said at a later stage in her evidence that before anything had happened in relation to this the defendant had said to her 'Shall I do it up the arse?' There was then a pain in her bottom and she assumed it was his finger. She said that it was not his cock and that it was his finger and the pain took a few seconds and it was very minor. It was suggested to her that the tip of a finger was briefly inserted into the rear of her anus or the rim of her anus. She said it must have been but that it was not an accident. If it was just the tip it hurt. She said she did not consent to it happening. She said it was not so much a surprise as a shock as to what had happened".

The defendant's account of the incident however was this: at page 33 he said:

"Towards the last two years rowing had not been a common feature of loving. Prior to that it had been violent. When I was giving her oral sex my hand went between her legs and I must have touched her anus. I did not think anything of it, it just happened. I never said 'Shall I do it up the arse?'."

Mr Henry took us to the recent case of R-v-Campbell unreported, but delivered by the Court on Friday, 26th January 1996, 95/2581/Y4, which dealt with the situation in cases of verdict inconsistency and went back to the earlier cases such as Durante and the more recent ones since then. At page seven Colman J, giving the judgment of the Court said this:

"The concept of verdict inconsistency was investigated and explained by this Court in R-v-Durante (1972) 1 WLR 1612. It is clear from this and from more recent cases such as McKechnie 94 Cr App R 51, Harrison 1991 Crim LR 859 and Aldred and Butcher 1995 Crim LR 160, that the essential consideration in each case is whether, having regard to acquittals on one or more counts, the jury's conviction on other counts is unsafe because the jury was perceived to have acted irrationally.

In those cases where, because of matters of fact in issue of which the jury would have to be sure before they could convict being the same for different counts, the verdicts of guilty and not guilty could not logically stand together, it is sometimes, but not always, possible to conclude that no reasonable jury, applying their minds properly to the facts, could have arrived at the differing verdicts. In such cases, the verdict of guilty may be treated as irrational and therefore unsafe.

There is, however, a broader category of cases where, although the verdicts are not strictly logically inconsistent in the sense described, they are nonetheless such as to suggest that the jury cannot rationally have applied its mind to the evidence. If the differing verdicts suggest that this has happened or may have happened, the verdict of guilty may be regarded as unsafe. Whether this does follow obviously depends upon the coincidence of the factual matters in issue in relation to the different counts in each particular case".

Mr Henry drew particular comfort from the words "if the differing verdicts suggest that this has happened or may have happened the verdict of guilty may be regarded as unsafe". He sought to draw support for his argument from the passages there set out.

It is noticeable, however, that the judgment of the Court goes on to deal with the other situation which applies in such cases as this. The Court went on to say:

"However, it quite clearly does not follow that because the jury must have disbelieved a witness or rejected his evidence, with the result that it acquitted upon one count, it is necessarily acting irrationally to rely on the evidence of the same witness to convict on another count".

For example, in Angel which was cited and applied by this Court in Aldred and Butcher Lloyd LJ, as he then was, said this:

"This case is a good example of the sort of circumstances which must exist before the court will intervene on the ground of inconsistent verdicts. It is not enough for verdicts on the separate counts to wear the appearance of inconsistency. The appellant must go much further than that. He must show that the true verdicts are so inconsistent that they cannot stand together. They must be logically inconsistent in the sense that a reasonable jury, applying their minds to the facts of the particular case, could not have reached the verdicts in question.

Thus, where the evidence is given by a witness for the Crown on one count and the defendant is acquitted on that count we often hear it argued that the jury must have disbelieved the witness and therefore should have acquitted on another count which also depended on that witness's evidence. It cannot be said too strongly that line of reasoning is fallacious. There may be all sorts of reasons, valid reasons, why the jury may have been convinced by the witness on one count, taking all the other evidence into consideration, but not convinced on another. A jury is not to be treated as having rejected a witness's evidence altogether just because it has not convinced of a defendant's guilt on a particular count. Where that happens, as it does from time to time, there is nothing irrational in the jury convicting on one count and acquitting of another".

The report then goes on to consider the case of R-v-Cilgram 1994 Crim LR 861. It is worthy of note that this Court earlier this week has had to consider that case in another appeal on similar grounds, and in our decision we drew attention to the fineness of the line dividing the two types of case and drew attention to the fact that the verdict of the jury who have heard the witnesses and considered the matter long and hard, is something which this Court must be very careful not to usurp nor should it set out on the perilous path of considering questions of corroboration which the courts used to find difficult enough and which is now no longer necessary in view of recent legislation in s.32 of the Criminal Justice and Public Order Act 1994.

This Court can clearly see a perfectly feasible way in which the jury could have approached their verdict, whether it was looking at the act of fingering the complainant's anus as something which was a separate incident entirely or was part of the general sexual activity which was going on at the time.

Looking at the situation, as we do, with the greatest of care, we can see that there was in the jury's verdicts on these two counts a clear explanation which is a logical finding and could not be said to be irrational or inconsistent. It was, in our view, perfectly open to the jury to come to the conclusion that they were not satisfied that the appellant knew the complainant was not consenting and were not satisfied that he was in any way reckless in having that state of mind.

We equally have come to the conclusion that they were, in fact, satisfied that the act of the appellant in placing his finger near and then into the anus was not an accidental act at all and they were entitled to accept the complainant's evidence that in relation to that moment of what was going on between them the appellant had used the words "Shall I do it up the arse?" It was therefore open to this jury to come to the conclusion that in the light of the long relationship between this man and this women, the way in which the behaviour between the two of them was going on in relation to the act of intercourse was not so dissimilar from the history of their sexual relationships over the years and the fact of it starting from time to time with some violence which then subsided and became mutual lovemaking.

They could equally have been satisfied on the evidence that at no time in the previous history of their lovemaking had there been any incident where there was entry into the woman's anus and they could have been perfectly satisfied in that history that there was no question of this complainant giving any consent to such contact with her and no question of the appellant having any belief or thought that there was consent to such conduct.

In those circumstances, we find no logical inconsistency in the jury having acquitted the appellant on the more serious charge of rape on the basis that they were not satisfied that he had any knowledge of the lack of consent, but, nonetheless, having convicted the appellant of the less serious offence of indecent assault, on the basis that they were satisfied that his contact with her anus with his finger was quite deliberate, was indecent, and they were satisfied was not something as to which he had any belief that the complainant was consenting.

In those circumstances, looking at the authorities as to how this Court should approach the verdicts, which are said to be inconsistent, we are satisfied that these verdicts were not so and there is no irrationality in the findings of the jury. It follows that this appeal must be dismissed.