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Cite as: [2001] EWCA Crim 2851

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Morina & Anor, R v [2001] EWCA Crim 2851 (21st December, 2001)

		Neutral Citation Number: [2001] EWCA Crim 2851
		Case No: 2000/04435/W3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
(His Honour Judge Pittman)

Royal Courts of Justice
Strand,
London, WC2A 2LL

21st December 2001

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE DOUGLAS BROWN
and
MR JUSTICE ASTILL
____________________

REGINA

- and -

HAZIR MORINA
&
ANTHONY PAUL SENTONGO

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

A J Femi-Ola Esq (instructed for the Appellant Morina)
Ms S A Rodham (instructed for the Appellant Sentongo)
Ms I Ray-Crosby (instructed for the Respondent)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

LORD JUSTICE HENRY:

This is the judgment of the Court. On 3rd July 2000 in the Crown Court at Snaresbrook before His Honour Judge David Pittman and a jury the appellant Morina was convicted on one count of rape (Count 3) and one count of attempted rape (Count 4: not guilty of rape, but guilty of attempted rape), and acquitted on two other counts of rape (Counts 1 and 2). He was sentenced to eight years’ imprisonment. The appellant Sentongo was convicted of two counts of rape (Counts 1 and 3) and one count of attempted rape (Count 4: not guilty of rape but guilty of attempted rape) and acquitted of a further count of rape (Count 2). He was sentenced to a total of eleven years’ imprisonment. They now appeal against their convictions on grounds which include, but are not limited to, inconsistent verdicts. We heard that appeal and were satisfied that the verdicts were indeed inconsistent. Therefore we quashed the conviction and ordered a retrial. We now give our reasons for so doing.

The Crown’s case was simple and uncomplicated. The complainant met the two men in a club. They all went back to the defendant Sentongo’s flat. There, on the Crown’s case, she was raped four times. On Count 1, both men were charged with rape. The Crown’s case was that Sentongo raped the victim while Morina held her down. Sentongo was convicted while Morina was acquitted on that count. On Count 2, the appellants changed places. The Crown’s case was that on this count Morina raped the complainant while Sentongo held her down. Both men were acquitted on this count. The jury were not satisfied beyond reasonable doubt by the complainant’s evidence. The complainant then attempted to escape and managed the run out onto the landing outside the flat, but was pulled back into the flat by Sentongo who proceeded to rape her (Count 3) with Morina holding her. On that count both men were convicted. Count 4 deals with the fourth and last rape, where again the Crown’s case was that it was Morina who raped the complainant while Sentongo held her. Both men were here convicted of the lesser offence of attempted rape by a majority of 10:2. Morina did not give evidence, while Sentongo did. There was DNA evidence indicating that Sentongo had had intercourse with her, but no such evidence in the case of Morina. Sentongo’s defence was that he had had intercourse with her, but only once, with her consent. Morina denied all sexual intercourse. He never assisted Sentongo; he was asleep throughout, and was drunk.

The prosecution case was put from beginning to end on the basis that there were four complete rapes, all involving both men - the rapist and his assistant. The jury’s verdicts created problems. Clearly, they had weighty reservations as to the credit-worthiness of the complainant. They must have found that she was not to be believed in accusing Morina of having held her down while Sentongo raped her (Count 1). Nor did they think she was to be believed where the Crown’s case was that Morina raped her while Sentongo held her down (Count 2). If that was so, why did they believe her on Count 3, when they accepted that Sentongo had raped her while Morina held her down? And Count 4 remains a mystery. They found attempted rape by both men for reasons not made clear. They had not been invited to take such a course - the prosecution had not put their case in the alternative, but had put it squarely on her account of penetration in Count 4.

It seems to us that there is no way that the verdicts as a whole could be justified or read as being consistent overall. We invited counsel for the Crown to explain to us the evidential basis for each of the jury’s verdicts, but she was unable to provide such an analysis. This did not surprise us, because we do not find a pattern in the verdicts, though they cover a single sequence of events. We have considered Garland J’s criticisms of the summing-up, and agree with them. But we do not agree with the section 31 judge as to his “... possible chain of reasoning ...” to explain the verdicts. In relation to Count 4 the complainant was cross-examined on behalf of Sentongo and accepted that he had attempted to pull Morina off her at the end, after Morina raped her, as she believed. If that had been the scenario, then Sentongo would have been found not guilty of attempted rape. Yet the jury found him guilty. Certainly the Crown could not suggest a set of facts which was consistent with both the true verdict being given on each of the counts and the way the prosecution put their case.

Additionally, Garland J, in granting leave under section 31, criticised the summing-up as being diffuse and unstructured and confusing We agree with the Garland as to his criticisms of the summing-up (“... something of a muddle ...”), and his conclusion that it did not give the jury the assistance they required on the facts of this case.

For those reasons we feel constrained to allow the appeals against conviction.