England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 February 2003

Mr Justice McCOMBE :

1. On 29 June 2001 in the Crown Court at Maidstone, before HH Judge Balston and a jury this appellant was convicted on two counts of rape and one of attempted rape. He was sentenced to 7 years imprisonment in respect of the first rape and 12 years consecutive thereto on the second rape charge. He was sentenced to 7 years imprisonment concurrent on the charge of attempted rape. The total sentence was, therefore, 19 years imprisonment. He appeals against sentence by leave of the Single Judge and renews his application for leave to appeal against conviction which was refused by the same judge.
2. The allegations against the appellant were of rape of two women in 1997. He was originally tried upon these charges in March 1999; he was convicted and sentenced to 19 years imprisonment. On 22 January 2001 this Court allowed his appeal against conviction in the light of fresh evidence, admitted by the Court, to the effect that the second complainant had had sexual intercourse with another man [PM] in the summer of 1997, whereas at trial her evidence had been that she had been a virgin at the time of the rape alleged. A new trial was ordered and that trial, from which this appeal and application result, took place at the Maidstone Crown Court between 18 and 29 June 2001when, as we have said, the appellant was again convicted.
3. On the first day of the trial, application was made to the Court by leading Counsel for the appellant (who did not appear before us and had not appeared at the first trial) for leave to cross-examine the relevant complainant as to her previous sexual behaviour with [PM].
4. That application was made under Section 41 of the Youth Justice and Criminal Evidence Act 1999. The application was refused. Thereafter, no evidence was led by the prosecution at the second trial to the effect that the relevant complainant had been a virgin at the time of the incident in question.
5. The material features of the evidence were as follows. The first complainant was a part-time student who lived with her brother in Mile End in East London. On 4^th June 1997 she had been walking home when she noticed a blue BMW motor vehicle parked on her side of the road with the passenger door open. The man in the car (the appellant) grabbed her by the arm and pulled her into the passenger seat of the car. Her ring came off in the process. The appellant got into the driver's seat and she heard what she thought to be the doors being locked. She had not met him before. He said that he liked her and only wanted to speak to her. He put her ring on his own finger, saying that he liked it. He appeared to be in a volatile mood and she was totally petrified. She gave him her mobile telephone number as she thought it might be a means of getting out of the car.
6. The appellant drove to a car park near some garages. He tried to kiss her but she pulled away. He asked her if she was seeing anybody else. She said that she was. He mentioned CCTV cameras and moved the car to another part of the car park. She told him she was not happy being in the car and that she wanted to go home. He said he only wanted to talk to her and turned the engine off. He said if she got out they could talk then he would let her go. They both got out of the car. He tried to kiss her and tried to lift her skirt. He touched her private parts then unzipped his trousers then performed an oral sex act on her. By that stage she was becoming hysterical. He became frustrated and pushed her onto her back on the back seat of the car. He got on top of her and penetrated her. At one point he moved her hands towards her vagina in an invitation to make her touch herself. When it had stopped, she got into the front of the car. The appellant followed her, pulled her head down and tried to put his penis into her mouth. Eventually she succeeded in pulling away and got out of the car. At that point he became emotional and said he wanted to talk. She ran away and got to some flats where a member of the public helped her.
7. In cross-examination she denied meeting the appellant that day when he had mistaken her for someone he knew, and denied making arrangements to meet him for a drink that evening. She denied that she consented to sexual activity (short of intercourse) with the appellant and denied that she responded to his kisses.
8. The person who had helped this complainant after the incident described her state when he saw her outside his flat. She was, he said, distressed and shaking violently, but was able to tell him something of what had happened. At one point her mobile telephone rang. She said, "He's coming". The person helping her understood the caller was apologising and asking to meet the complainant again. Her boyfriend gave evidence of a telephone call from her and went immediately to where she was. He described her as very distressed.
9. The police arrived and she was taken to the police station and examined by a doctor. She received several calls on her mobile telephone from the appellant and agreed with the police to set up a meeting with him, which resulted in his arrest. This complainant at one stage withdrew her complaint but reinstated it after the second complainant reported matters affecting her.
10. In interview the appellant said he had met the first complainant earlier in the day having mistaken her for someone else. They had exchanged telephone numbers and had met later in the evening for a drink. As a result of a telephone call, the appellant went to pick up a man called "Jonesy" in Stratford and the first complainant had gone with him. When they picked him up, she said they should stay out of the Mile End area in case her brother saw them and they then went towards Bow. The appellant said he parked the car and she started kissing him. Whilst on the bonnet of the car it was she who had lifted up her skirt, started to feel his penis and made him put his fingers in her vagina. This was all said to have occurred in the presence of "Jonesy". She had, he said, invited him to have intercourse with her but he had not done so. There was no oral sex and the complainant had left the scene in a bad temper. He admitted that he made a telephone call to her later on.
11. The second complainant said that in December 1997 she was 16 years old. On 8^th December she was on her way to college. A man (the appellant) pulled up in a black BMW. He was calling out her nickname and said her brother had a message for her. She was worried and got into the car as asked. She trusted him because he seemed to know details about her brother. He drove to a garage where he exchanged the car for a white BMW, then said he was taking her to her brother. In fact he drove to a car park. When she asked what they were doing there, he told her to shut up. She tried to get out of the car but the doors were locked. The appellant produced a Stanley knife; he said that if she did not shut up he would kill her and told her to do as she was told. He undressed then held the knife to the side of her throat and tried to undress her. He got on top of her, put his fingers in her then raped her. He abused her verbally and said she deserved it. She asked him to stop, and tried to push him off but he was too heavy. He carried on with the knife at her throat causing her neck to bleed. At some point he hit her in the face.
12. He finally stopped, got back into the driver's seat and told her to get dressed. He said that if ever she told anyone he would kill her brother and tell her parents what had gone on. After dressing he laughed at her. He seemed calm and drove off to get food. She wanted to escape but was unable to do so. The appellant said that he would take her back to Gravesend. She agreed because she did not know where she was. After dropping her off, the appellant called her on her mobile telephone. When she got home she had a bath. She did not want to call the police. She spoke to a friend called Manjinder and told him what had happened.
13. The attempted rape charge arose out of events which the second complainant said happened one week later. The appellant had telephoned her. He said he wanted to see her again and threatened to kill her brother and four-year-old cousin if she refused. She felt she had no choice and agreed to meet him the following Thursday. She met him in the car park at the college. He told her to get into the car and drove her to the same car park as before. He expressed concern that she might be pregnant. She told him that she would have an abortion and he got upset. He got into the back seat of the car and told her to do the same. His trousers were below his knees. She got into the back seat but left the door open so that she could get out. He pulled her trousers down and tried to pull her on top of him. She screamed and dug her fingernails into his arm. He let go of her and she was able to get out of the car. She made her way to the tube station. The appellant pulled up in his car and shouted that he loved her. She spoke again to the same friend on the telephone and got the train to Dartford to meet him. She told him what had happened then got a train home to Gravesend. She received further calls from the appellant.
14. In cross-examination she said she had been getting anonymous calls before 8^th December (the date of the first incident) but had never met or spoken to the appellant before that day. He had not asked her for directions and had not given her a lift to college. She denied arranging to meet him for a drink on the occasion of the first incident. She denied starting to kiss the appellant or feeling between his legs. She denied encouraging him in any way. As to the second occasion, she denied that there was sexual activity with the appellant with her consent. The friend whom she said she contacted after each incident gave evidence supporting her account so far as it related to the complaints made to him.
15. The appellant was arrested on 28^th January 1998. In interview he said he had met the second complainant about two months previously. He had been lost and had asked her for directions. They had a conversation and she had given him her mobile telephone number. He gave her a lift to college. They later arranged to go out and, at her request, he had collected her from college. They bought some drink in Stratford, parked the car on the main road and started kissing and hugging. She got his penis out and started to masturbate him. He put a stop to it and she became paranoid and said she wanted to go home. He gave her some money to get a train home and he then went to sleep in the car. He telephoned her later and she had apologised for her actions. He called her a couple of weeks later and arranged to pick her up at college. They had met again and she had wanted to go somewhere away from Gravesend in case her parents saw her. Later they started kissing and hugging but that was as far as it went.
16. He told of a third occasion when they went to Bromley-by-Bow. He changed the car on the way for a red BMW. They parked in a street and were both the worse for drink. Consensual sexual activity had taken place, but not intercourse. He denied threatening her with a knife and denied making threatening telephone calls directed at her of her family. In evidence at trial the appellant maintained, for the most part, the accounts that he gave in interview.
17. With regard to the events concerning the first complainant, he gave details of the public house where he met that complainant for a drink and gave details of their conversation. He described the sexual activity that occurred both outside and inside the car and said that everything he did was with her consent. He admitted that he had lied in interview about the person called "Jonesy". He invented him, he said, out of panic as he thought the police would not believe him whatever he said.
18. With regard to the second complainant, the appellant gave further details of how he met her and their subsequent meetings. He denied having a knife or threatening her. He maintained that he did not have sexual intercourse with her on the first occasion and did not attempt to rape her on the second occasion. He said that he had got things wrong in interview because he was feeling confused. His defence statement, prepared by his former solicitors and signed by him, stated that he had had consensual sexual intercourse with the second complainant. He said that he had not read the document, but it had been read to him.
19. We turn now to the applications made to the trial judge and to the grounds of appeal. At the beginning of the second trial, before Judge Balston, the defence applied to the Court for leave to cross-examine the second complainant "on the evidence she gave at the previous trial to the effect that she was a virgin prior to meeting Mr. Singh. This was supported by the evidence of Dr. Joanne Herring…" (The quotation is from the outline argument of defence counsel in support of the application.) Application was also made "to call [PM] to give evidence to the effect that he did have sexual intercourse with [the second complainant] prior to her meeting with Mr. Singh" and to call certain other supporting witnesses. The submission was that the proposed cross-examination did not go solely to the second complainant's credibility "…but to the issue of whether she gave truthful evidence at the first trial…". With respect, we are unable to any distinction between the concepts of "credibility" and "whether she gave truthful evidence".
20. The learned judge refused the application. He said,

"The effect of that would be, if allowed, that the defence would be able to ask her questions about her sexual relationship with the man in question. That is covered by Section 41 of the Youth Justice & Criminal Evidence Act and, clearly, it is not permissible without the leave of this court[s] (sic).

I am asked to rule that it is in the interests of justice, and the defendant in particular, that leave should be given simply to establish that the witness was a liar in the original trial. That may be the intention but it would also have a side effect which is, in my judgment, prohibited in Section 41".

21. In the original grounds of appeal to this Court, settled by leading counsel for the appellant, who had appeared at trial and had made the unsuccessful application to Judge Balston, it was submitted that the learned judge was wrong to have refused the application because,

"The said cross-examination and evidence would have put before the jury for their consideration that evidence from the [second complainant] led by the Prosecution at a previous trial to the effect that she was a virgin, was false evidence given under oath".

In a supporting outline argument it was submitted that,

"…this was not an issue of credibility (sec. 41(4) of the Youth Justice & Criminal Evidence Act 1999) but went to an issue of fundamental importance, namely the witnesses (sic) fundamental honesty and reliability in the light of possible perjured evidence given at the previous trial…".

Again, we fail to see the distinction sought to be drawn. In our view, in so far as the cross-examination and the evidence sought to be introduced fell within the terms of Section 41, the purpose or main purpose of its introduction would have been to impugn the credibility of the second complainant as a witness. Thus, statute provides it could not have been regarded by the court as going to a relevant issue for the purposes of subsection (3) of the Act: see section 41(4). Accordingly, the application, as made in the Crown Court, was bound to fail as it did and, in our view, the learned judge was right so to rule. Mr. Krolick, who appears before us for the appellant, accepts this. However, he submits that the application made to the Crown Court was not the proper one to make. The cross-examination and the evidence should have been allowed for a different reason and, therefore, the convictions are unsafe.

22. Mr. Krolick submits that leave should have been given to cross-examine the second complainant to the effect that she had testified at the first trial that she had had sexual intercourse in the form of penile penetration on only one occasion and had stated the same to a forensic medical examiner (Dr Herring). Further, Mr. Krolick submits that the judge wrongly refused to admit evidence that "the singular sexual act of said complainant in the form of penile penetration had been during the summer of 1997 with [PM]". This evidence, says Mr. Krolick, was "relevant to an issue in the case which was not an issue of consent, namely whether or not the Defendant had had sexual intercourse in the form of penile penetration with the said complainant": see ground 2 of the revised grounds. In the alternative, he argues that trial counsel failed properly to put the application to adduce the new material on the basis that it supported the Defendant's case that he had not had sexual intercourse in the form of penile penetration of the second complainant. In each case, submits Mr. Krolick, this is not an issue of credibility. It is accepted, however, on the appellant's behalf, that this was a case where Section 41 of the 1999 Act was applicable and that, therefore, leave of the court was required before the cross-examination and other material could be adduced. Mr. Krolick eschewed any argument to the effect that this was not a case to which Section 41 applied at all for reasons analogous to those that prevailed in this Court in R v T; R v H [2002] 2 WLR 832; [2001] EWCA Crim 1877.
23. It will be recalled that in each of those cases the defence had sought to cross-examine a complainant either as to failures to make complaints when opportunity presented itself or to establish that fabricated allegations of sexual assaults had been made in the past. In each case, leave to cross-examine had been refused in the Crown Court because the questions were held to be "about…sexual behaviour of the complainant" and the purpose for which they were to be asked was to elicit material for impugning the credibility of the complainant as a witness. In this Court the appeals were allowed on the basis that the intended questions were not about sexual behaviour but related to past statements or failure to complain about alleged behaviour. Thus, the questions were not automatically excluded by section 41 at all.
24. Mr. Krolick further submitted that the evidence ought to have been admitted because it fell within Section 41(5). In other words, it is said that the evidence relates to evidence of sexual behaviour of the complainant adduced by the prosecution (i.e. intercourse with the Appellant) and the evidence to be adduced would go no further than was necessary to rebut or explain the prosecution evidence. However, evidence of intercourse between the complainant with PM would not, on its own, rebut or explain the prosecution evidence. Such evidence could not on its own rebut or explain evidence of intercourse with the Appellant. The missing element would be evidence that the complainant had only had intercourse on one occasion. No such evidence was to be led.
25. In this respect, we were referred to the evidence, given at the first trial by the doctor. In the course of that evidence, the doctor expressed the view that the physical observations of the complainant made by her indicated that there had been "at least one episode of blunt penetrating trauma, most likely penile;…quite consistent with the allegation as I had been given it". Mr. Krolick sought to argue that he should be given the opportunity (and a representation order) to enable the doctor to be interviewed further as to whether her view was that such episodes had been "at least one" or only one, so as to establish that, if PM's evidence were accepted, intercourse with the Appellant could not have occurred. In our view, in the light of the doctor's evidence, as given at the first trial, such an exercise could be no more than speculative. Further, it could not have the result of altering the application of Section 41 of the 1999 Act to the facts of this case.
26. In the end, the purpose of the evidence that it is said should have gone before the Crown Court was to demonstrate that this complainant had had intercourse with someone other than the appellant and that she had told lies about having had intercourse with the Appellant. That appears to us clearly to be evidence or questions about her sexual behaviour deployed for the purpose of impugning her credibility. The application under Section 41 to admit that material would be bound to fail. The proposed line of questioning was prohibited by section 41(1) unless leave was granted pursuant to section 41(2) which could only happen if either section 41(3) or section 41(5) applied. As the prosecution did not rely on her virginity section 41(5) did not apply; section 41(3) cannot apply because section 41(4) blocks reliance on that sub-section when the main purpose of introducing the material is to impugn credibility.
27. For these reasons, the renewed application for leave to appeal against conviction is refused.
28. We now turn to the appeal against sentence. The appellant is now 32 years old. He has two previous convictions for theft in 1987 and 1988. In 1995 he was conditionally discharged for an offence of indecent assault on a female. There was no pre-sentence report. In passing sentence Judge Balston said that he did not propose to repeat to the appellant what was undoubtedly said by the Judge in the first trial. He said the Appellant was clearly a dangerous man, who subjected two young girls to the most dreadful indignities, knowing well they would have had difficulty in complaining about it. The sentence the Judge proposed to pass was exactly the same as the sentence passed at the previous trial.
29. It is now argued that the learned judge did not exercise his own sentencing discretion at all. His remarks were short and he merely passed the sentence passed at the first trial. In any event, it is submitted that the sentence was excessive. Moreover, it is submitted that there is now no evidence to support a finding that the second complainant was a virgin when attacked, as the judge at the first trial had noted when passing sentence. It is further argued that the sentence was excessive in the light of the guideline cases. We have had before us a transcript of the sentencing remarks of HH Judge Croft at the first trial. The learned judge said that he had considered passing a life sentence. He had also considered whether to pass a longer than commensurate sentence that he did not do so in the light of the sentence which he proposed to pass. However, the present appeal is not an appeal from that sentence and we must confine ourselves to the sentence passed at the second trial. It is unfortunate that the learned judge did not set out rather more fully his thinking in passing the sentence and we, therefore, have to glean what we can from the circumstances as a whole. At a re-trial the sentencing judge must be seen to exercise his own discretion as to sentence and should say sufficient to indicate that he has done so.
30. This case involved two rapes and one incident very close to rape. It seems to us that this matter had the features of the beginnings of a "campaign of rape" of the type considered in Billam (1986) 8 Cr. App. R (S) 48. There was other violence and other indignities were forced upon the victims. There was an element of abduction in each case and, in one case, a knife had been used. These were clearly very serious offences, incorporating targeting of the victims which would have required pre-planning. While, as we have said, these offences displayed the signs of the beginnings of a campaign of rape, it had (fortunately) not yet reached that stage. Having regard to the guideline cases, we consider that, while the individual sentences may well have been unimpeachable, the totality of them is somewhat too long. Accordingly, we propose to substitute, for the sentence of 12 years passed on Count 2, a sentence of 8 years. The other sentences will remain the same, giving rise to a total sentence of 15 years instead of 19 years imposed in the Crown Court. To that extent, the appeal against sentence succeeds.