England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ BOAL QC AND A JURY

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 11 2005

President of the Queen's Bench Division:

1. In April 2002 Ricardo Prince was convicted of rape by a majority verdict (10-2) at the Central Criminal Court before HHJ Boal QC and a jury. He was sentenced to 8 years' imprisonment. This was a second trial, the jury at the first trial having been unable to agree a verdict.
2. Following a Reference to this Court by the Criminal Cases Review Commission under s 9 of the Criminal Appeal Act 1995 on the basis of fresh evidence emerging after the trial, the conviction was quashed on 1st November 2005. These are our reasons.
3. The offence was alleged to have taken place between 1st and 20th December 1999. The victim was Siobhan Berry (SB). At the time she was 14 years old, and the appellant was 27, having recently married her grandmother.
4. The background is rapidly explained. During 1999 Sandra Palmer (Sandra) met the appellant. Sandra's mother was called Shirley, and SB was her daughter. Sandra introduced the appellant to her mother. In September 1998 her mother and the appellant married and moved to her two bedroom flat in Crystal Palace. In November 1999 Sandra and SB together with two other siblings, moved into the flat. The general arrangement was that Sandra and SB slept in a double bedroom while the appellant and Shirley slept in the sitting room.
5. In January 2000 SB complained that the appellant had raped her. The details of the incident require no elaboration. The complainant asserted that the appellant ejaculated in her underwear. On 25th January the police asked for the knickers she was wearing at the time to be handed over. This did not happen immediately, but after one failure to meet an appointment, they were handed to the police on 8th February. The explanation for the delay was that because of the somewhat nomadic existence of SB and her family after Christmas 1999, the knickers were in one or other of a number of black bags in which her clothes were kept, "along with everybody else's stuff". By that she meant the various different people they were living with.
6. The defendant denied the allegation. No rape or sexual interference of any kind had occurred. It was suggested that the false complaint was motivated by Sandra's developing hatred of him as the husband of her mother. Quite apart from the influence of Sandra on SB, it was suggested that SB disliked the appellant personally because of the impact on her of the marriage. These allegations were supported by Sandra's mother, Shirley.
7. This contention was said to receive support from an earlier incident in which SB alleged that she had been raped. In 1995 she claimed that an older man (B) had raped her in 1993. B was tried and acquitted. He claimed that the allegation was false, and invented by SB at her mother's behest. Her mother hated B because they had fallen out. We are unable to form any very close view of the precise reason for the acquittal. Mr Magarian suggested that the medical evidence at the trial of B showed that notwithstanding the allegation of rape, SB's hymen was intact. However, as the incident of which SB complained had taken place two years before the relevant medical examination, there was also evidence which suggested that even if the hymen had been broken, it may have repaired and healed. In any event, however, the verdict of the jury carried with it the inevitable conclusion that they were unable to be sure that SB's complaint against B was true.
8. At the trials of the appellant the juries were also aware of the fact that, having made the complaint against the appellant, SB had withdrawn it. She said that she had retracted her statement because her grandmother had offered her money and gifts to do so. Her grandmother denied that she had offered any reward to her granddaughter to drop the allegation. Rather, after she had signed the statement withdrawing her complaint, SB asked her for money.
9. We must here note the number of additional features of the evidence. At trial the defence made something of the fact that on the night when the rape took place, SB claimed that she had gone to her mother's bed and spent the night there with her. She made no complaint to her mother until January. The knickers that she was wearing on the night were washed with soap and water and also in a washing machine. They remained in the control and custody of the complainant and her mother until 8th February, when for at least part of the time they were living with the appellant, and when, as we have already noted, they were later kept in bags with clothes belonging to "everybody".
10. The complaint was first made to a taxi driver, who was friends with SB's grandmother and mother. He was Delroy Robinson. One day in January 2000 she complained to him of what the appellant had done, and he advised her to tell her mother. When her mother came to the taxi, he heard her tell her mother what had happened. He also described an occasion when he told the appellant that he should talk to SB "like a dad", and the appellant's response had suggested that he would have great difficulty in doing so because he wanted "to fuck her". This conversation was strongly denied by the appellant, who suggested that Delroy Robinson had put his head together with Sandra and the complainant to achieve his conviction.
11. Scientific examination of SB's knickers revealed a visible stain on the crotch area and four spermatozoa. The small number made it impossible to determine their origin. At the relevant time the complainant had a boyfriend with whom she was sexually active. What was found in the crotch was consistent with vaginal drainage.
12. It is an agreed fact that there is no direct knowledge about how the trace amount of semen staining actually detected might have been deposited on the knickers. Such small amounts might well be the residues of what was initially more extensive staining prior to washing. Equally well they might be the result of secondary transfer from another more heavily semen-stained item. In this instance, such may have occurred through direct contact, or, conceivably, indirectly if the knickers had been washed with another garment bearing more extensive semen staining.
13. Extracts taken from the knickers as a whole indicated the presence of the DNA of at least three individuals, consistent with a mixture from the complainant, her boyfriend at the time, and the appellant. The profile was incomplete. After the profile of the complainant and her boyfriend had been removed, the possibility of the remaining profile being that of someone other than the appellant was put at 1 in 210,000. However that conclusion did not dispose of the possibility of accidental transference or contamination and the DNA could have resulted from any body fluid or saliva, blood or blood cells, skin tissue or, for example, hair.
14. When the trial judge summed up the case to the jury, he immediately grasped the nettle, and pointed out that there were no subtle shades of grey in the case. Either the complainant or the appellant was lying. "In one sense, it may essentially be a question of who you believe. In that sense, it might be described as one person's word against another." He reminded the jury that the Crown had submitted that they should accept SB's evidence, supported as it was with some additional strands of evidence, but if they did not believe her the Crown accepted that would be the end of the case.
15. This analysis was obviously correct. SB's credibility was at the heart of the case against the appellant. However, before her allegation was to be rejected, close attention had to be paid to the evidence from the forensic scientists.
16. Again, it is helpful to see how the trial judge left this issue to the jury. He directed them that the prosecution did not suggest that the scientific evidence was conclusive of guilt, or that taken on its own it proved that the appellant had raped the complainant. He reminded the jury that the Crown suggested that if the jury were satisfied that the DNA was the appellant's DNA, then there were three possibilities to explain its presence on the knickers. The possibilities were accidental transference, deliberate planting, or sexual intercourse by the appellant with SB.
17. No complaint is made about the summing up. The directions to the jury were accurate and the summary of the evidence balanced and fair.
18. After conviction the appellant continued to protest his innocence. At an earlier stage he drew attention to a number of video taped interviews with SB. Some of SB's answers or comments could arguably be said to have been inconsistent with her complaints. However these interviews took place in unusual circumstances, involving covert filming of her responses to leading questions in circumstances in which it could fairly be said that she was being manipulated. Mr Magarian, for whose balanced submissions we were grateful, made clear that he was not relying on the material disclosed in these video taped interviews to found his submission that the conviction was unsafe.
19. His essential submission is that the appellant can demonstrate beyond question that the complainant has told deliberate lies about the circumstances of the incident on which this conviction depends. Her credibility is in tatters, and it should be treated as indivisible.
20. We admitted in evidence the application to the Criminal Injuries Compensation Authority (CICA) made and signed by SB, dated 28th April. We admitted the application form signed by her dated 28th April 2003. The account to the CICA included a number of significant features which did not appear in the account of the incident given by the complainant to the police, or to the jury at either of the appellant's trials. In summary, first, she claimed that when she woke to find to the appellant on top of her and tried to scream, he held a gun to her head and threatened to kill her. Second, he raped her anally as well as vaginally. Third, he threatened to kill her if she told anyone about the rape. Fourth, she had become pregnant as a result of the rape, and she had then undergone a termination. Fifth, she had also been infected with gonorrhoea and chlamydia.
21. When she was first asked about the contents of this application, SB indicated that there was documentary evidence to support her complaint about the medical consequences of the rape. However, she was unable to find the relevant documents, and she understood that appropriate enquires would be made about her medical history. The result provides clear evidence that the complainant was treated for chlamydia but not gonorrhoea, in July 1999, when she was approximately five weeks pregnant by her then boyfriend, and also that the pregnancy was terminated in October 1999, some two months before the alleged rape.
22. The complainant's explanation for these discrepancies was that the events surrounding her pregnancy and ill health must have become confused in her mind. She said that she had not previously mentioned the anal rape because she found it distressing and embarrassing. There had been no full penetration of the anus. It had bled briefly during that night. She had received no medical treatment. She repeated that the appellant had carried a gun with him when the rape occurred. She said that she thought she had mentioned it to the police at the time, but could not explain why she had not mentioned it when she was interviewed, or in evidence. When asked to comment, the officer in charge of the case said that so far as he could recollect, the complainant never stated that the appellant had produced a gun.
23. We have closely examined all the available material bearing on these issues. It is however unnecessary to analyse it further, or add to the narrative. Part, at least, of the application to the CICA was false. In other respects, it was inconsistent in significant respects with the evidence before the jury. SB's credibility is significantly damaged, damage, we emphasise inextricably linked to the complaint which resulted in the appellant's conviction.
24. The Crown accepted that the complainant's credibility was directly affected by the contents of her application. Ms Dakyns suggested that this did not establish that SB lied in her evidence at trial. The scientific evidence continues to confirm her assertion that sexual intercourse took place with the appellant, and he is untruthful when he continues to deny that it did. If it did, then it was rape.
25. If the scientific evidence did indeed go that far, it would provide compelling evidence of guilt. Notwithstanding the damaged credibility of the appellant the conviction might very well be safe. That said, however, we are unable to accept the Crown's basic premise.
26. The problems with drawing any satisfactory inferences from the scientific evidence have already been recorded. The spermatozoa found on SB's knickers was not attributed to the appellant. There was an alternative source. His DNA was found on her knickers, but in the context of this case, the risks of contamination are clear, and insufficient to justify the conclusion that the DNA must represent sexual contact between him and SB. At trial, as the judge summed the issue up to the jury, the Crown did not suggest that this evidence was conclusive of guilt, and accepted that there were three possibilities to explain the presence of the appellant's DNA. That measured approach was wise. In our judgment taking the scientific evidence at its best from the Crown's point of view, it is inadequate to save this conviction. It is unsafe. For these reasons, we quashed it.