England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
HIS HONOUR JUDGE MARTINEAU

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2006

President of the Queen's Bench Division:

1. On 22nd June 2004, in the Crown Court at Blackfriars before His Honour Judge Martineau and a jury, Naveed Soroya was convicted of one count of rape (count 2). He was acquitted of indecent assault, (count 1) on the same complainant, two days earlier. On 5^th July he was sentenced to six years' imprisonment. The appropriate notification orders were made.
2. He now appeals against conviction with leave of a full court. The complainant was a young Polish girl called Anna. Then aged nineteen, she arrived in the United Kingdom from Poland on 13th April 2003. She was looking for work. She lacked a work permit. Her English was poor. She responded to an advertisement placed in a Polish language newspaper, and as a result arranged to meet the appellant.
3. The appellant has business interests in hotel management. He offered the complainant work, cleaning at a hotel. They met three times in all, first at a flat belonging to his brother, to discuss her employment, and shortly afterwards on two occasions, on 22nd April and 24th April at the same flat.
4. The prosecution case was that the appellant made unwanted sexual advances at their first meeting, while holding out offers of cleaning work. The complainant left the meeting, intending to find other work, but was unable to do so. She contacted the appellant about a week later. She agreed to meet with him at the flat so that he could provide her with details of the hotel at which she was to work. At the second meeting, the Crown alleged that the appellant indecently assaulted the complainant. Two days later, she went back to the same flat to collect £100 in wages. He raped her, and gave her £50 rather than the £100 he owed her.
5. The defence case was that the complainant made it clear from their first meeting that she was prepared to have or interested in having a sexual relationship with the appellant. There was no dispute about the sexual touching which she alleged had taken place during the second meeting, nor indeed that sexual intercourse took place during the third. The defence case was that all the sexual activity between them was consensual. The complainant was enthusiastic. Her behaviour suggested that she was not lacking in sexual sophistication. After sexual intercourse had taken place, the complainant requested more money than the appellant owed her, and when the appellant refused, she threatened to cause trouble.
6. For the purposes of the present judgment, it is unnecessary to set out a full narrative account of the evidence. We must, however, note that an important issue at trial concerned the complainant's "conversional disorder". This condition had been diagnosed in Poland, where the complainant was treated by Mr Naumiuk. She was an in patient in hospital for some ten days in June 2000, and then from January 2001 until June 2001, and again between February and June 2002. Her condition meant that she had extreme difficulty coping with highly charged situations. From time to time she would suffer episodes of difficulty with breathing, muscular irritation, fainting and loss of consciousness. When she was suffering what was described as "acute attack" she became incoherent, unable to hear, or speak, or react to what was happening around her, and utterly helpless.
7. Further psychiatric evidence was provided by Dr Taylor, on behalf of the Crown, and Dr Gaskin on behalf of the defence. In the result, the only psychiatric evidence before the jury was that of Dr Naumiuk, whose edited report was read to the jury by consent.
8. There was no independent evidence supporting the allegation of indecent assault. However, in the context of the rape allegation evidence of recent complaint was available. The complainant was described as "virtually hysterical" when she telephoned a friend, who met her at a tube station. She was crying and trying to catch her breath. When they met she complained that she had been raped. He suggested that they should go to the police station, which they did.
9. When the complainant was medically examined, no injuries were found. That said, the findings were neutral, although the doctor was asked questions about the result of her examination, with a view to contradicting the complainant's own history of very limited previous sexual activity She adhered to the opinion that nothing in her findings contradicted the complainant's account. Forensic examination of vaginal swabs provided strong support for the proposition that the complainant had had sexual intercourse with an individual wearing a silicone lubricated condom within the last thirty six hours.
10. The appellant was interviewed by the police. He denied both offences. He was adamant that all sexual activity between him and the complainant had been consensual. The interviews included significant lies. First, the appellant untruthfully asserted that he did not think penetration had occurred. Second, he lied when he said that at the second meeting at the flat, he had taken a condom from a chest of drawers.
11. When the appellant gave evidence, he repeated the case advanced in interview, that all sexual activity was consensual, and he had done nothing with or to the complainant without her consent. He explained his lie about penetration on the basis that his solicitor had told him not to admit to full sexual intercourse because the police had not at that stage alleged that penetration had occurred. So far as the condom issue was concerned, he explained that lie as a consequence of panic in interview when he was "scared" and "all over the place". We do not propose to explain the significance of these lies, but simply note that they were directly connected with the circumstances in which sexual activity took place.
12. The appellant was a man of good character. Positive character evidence was given on his behalf.
13. This brief summary of very much more detailed evidence sufficiently explains the major themes in the evidence called before the jury. No criticism is made of the summing up. The verdicts are not said to have been, and could not be said to have been, inconsistent.
14. At the outset there were two distinct grounds of appeal. The first arose from the impact of section 41 of the Youth Justice and Criminal Evidence Act 1999. The argument was that evidence of the complainant's previous sexual history was wrongly introduced by the prosecution at trial in circumstances which would not have been permitted to the defence. This constituted a breach of the appellant's right to a fair trial, and infringed the requirement that there should be "equality of arms" between prosecution and defence. Successfully sustained, this ground of appeal would involve discussion of significant issues of principle arising under section 41. At the end of the hearing, we dismissed this ground of appeal, and now give our reasons for our decisions.
15. The second ground of appeal concerned fresh evidence. In brief, it was suggested that the complainant had made a false complaint about a sexual attack on her by a man in Poland, before she arrived in England. As the outcome of the trial depended on the jury's view of the credibility of the complainant and the appellant, this was said to be a critical piece of evidence about which the jury was ignorant when it reached its verdicts.
16. A very late application was made to advance a third ground of appeal, said to raise further issues of direct importance to the credit worthiness of the complainant. After considering the material put before us by Mr Mansfield, we came to the conclusion that although we were not prepared to give leave on this ground, the issue merited further inquiry. Accordingly, this proposed ground of appeal was adjourned. We concluded that as the second ground raised "fresh evidence" issues relating to the credibility of the complainant, it was not practicable to treat it as a discrete point. Accordingly the second and third grounds will be reconsidered at a later hearing at which issues of fresh evidence will be addressed.
17. We must explain the evidence relevant to the first ground in a little more detail. In the complainant's witness statement a detailed narrative account of the rape was provided. During the incident, she told the appellant that she had never had intercourse before. He said that it had to happen sometime, and that it always hurt. She was in pain and tried to move away. She claimed to be a virgin in the hope that this might lead the appellant to desist from the assault on her. The claim was untrue. The complainant explained in her statement that she had had sexual intercourse on one previous occasion, about a month before she left Poland. The complainant further explained that she had once been attacked by a man in the past, and that she had fought back. The result was that she received serious injuries, and she explained that during the incident when she was raped by the appellant, she was terrified that she might be hit, and scared that he "might get angry".
18. In her account to Dr Gaskin, as given in her second report, the complainant explained that before moving to the United Kingdom, she had met her first serious boyfriend, who was slightly order than she was. She had sexual intercourse with him about a month before coming to the United Kingdom. This was the first occasion she had had sexual intercourse. She also explained an incident which occurred when she was about sixteen years old, at a party, when a boy two years older than she was, approached and appeared to be showing interest in her. When he tried to touch her sexually, she told him that she did not want him to, but the boy ripped her blouse open. She thought she suffered a "panic attack" during the incident, and subsequently fainted. When she woke up, she noted some physical injuries in the form of bruises. Although she was not aware of precisely what had happened to her, she had not been raped during the incident.
19. The report from Dr Taylor was disclosed to the defence. When he interviewed the complainant, she told him about the attack on her when she about sixteen years old. She said that she had resisted physically, and the attack ended with her collapsing due to a panic attack. She was hurt, but not raped. She also told Dr Taylor that she had had sexual intercourse on one previous occasion, with her boyfriend before she travelled to the United Kingdom.
20. The Crown did not lead evidence about the attack on the complainant when she was about sixteen years old. Although the issue was addressed in a number of different documents, the defence did not explore it. It was not suggested, and there was no basis for suggesting,` that the allegation against the un-named Polish boy was false.
21. Before the complainant gave evidence, there was an argument about the admissibility of the complainant's previous sexual history. It was conceded that if the complainant said in evidence, as she had claimed in her statement, that she had only had sexual intercourse on one previous occasion, section 41 of the 1999 Act meant that the defence could not contend that they should be allowed to cross-examine her on that point. Counsel, rather boldly, asked to be able to indicate to the jury that it was not accepted by the defence that this was indeed the true position. The defence case was that she was sexually experienced.
22. In fact, the Crown did not intend to adduce evidence of the complainant's previous sexual history. It suggested that the complainant should be allowed to give evidence of what she had actually said to the appellant during the incident when she was raped. This was part of a verbal exchange which helped to demonstrate that she was not consenting to sexual intercourse, and that the appellant knew she was not consenting to it. Although she said what she said to put the appellant off, as the truth was that she had had sexual intercourse on a previous occasion, the jury should be informed of the truth. The judge agreed, and further agreed that counsel for the appellant could add "that is not a matter I am allowed to cross-examine you about….but the Crown and His Honour know that it is not a matter that the defence accept."
23. When she gave evidence the complainant said that she told the appellant that she had never done this (meaning that she had never had sexual intercourse) and added that she did not want to do it with him. She also described his response, that there always had to be a first time. When she was cross-examined it was suggested to her that she had never told the appellant that she was in pain. This brief exchange then followed:

"Q You say that you told him that you had never had sex before?

A: Yes

Q: That was not true, was it?

A: I did once inasmuch as I tried to with my boyfriend…yes, yes. I did have once.

Q: That was not the question. The question was: what you said was not true?

A: Yes"

Counsel then told the court that she wished to explain to the complainant that she was "specifically not allowed to ask any questions about sexual history". The judge pointed out to the jury that this was the consequence of an Act of Parliament, and counsel went on that it was "probably also proper at this stage to indicate that the defence do not accept that there was only a very limited sexual knowledge, but we can ask no questions about it whatsoever".

24. The judge asked the complainant why she had made the untrue statement that she had never had sex before, and she explained that she was doing her "utmost to verbally defend myself". She had not had sexual intercourse before because "there are men who don't like doing it with women who haven't had sex before".
25. We have already recorded that material was put before the jury about the state of the complainant's vaginal area, and the absence of any signs of a hymen. No questions on this topic were directed to the complainant herself.
26. This ground of appeal involves a broad forensic attack on the impact of section 41 of the 1999 Act, and indeed whether it is compatible with the requirements of article 6 of the European Convention on Human Rights. In essence Mr Mansfield's argument is that in the context of what was regarded as permissible questioning of a complainant about her previous sexual history, the defence was placed at a disadvantage when compared to the prosecution. The object of the legislation is to prevent anyone, prosecution or defence, from asking questions which might cause embarrassment or difficulty to a complainant, male or female, about matters which are entirely personal, and interference with which damages the complainant's autonomy. Mr Mansfield suggested that whether or not the Crown was seeking to rely on the absence of a history of sexual activity or not, there was a danger or risk that the jury would misuse the evidence given by the complainant about her previous sexual experience. Therefore the evidence should have been appropriately edited, so that her account of what she said during the incident would have omitted any reference to her saying this would be the first occasion she had had sexual intercourse. Mr Mansfield suggested that the jury was already provided with sufficient material from which it was open to them to conclude that the complainant had not consented. His argument, as it developed, was that the fact that the complainant was a virgin, or virtually so, had no bearing on the case. Her previous sexual history did not help to establish whether or not she consented to sexual intercourse on this particular occasion. The prohibitions in section 41 should embrace the prosecution. As they did not, the process was unbalanced, adversely to the defendant.
27. The short answer to these submissions is that the Crown did not rely, directly or indirectly, on the complainant's previous sexual history. It was not seeking to do so, so to speak, on a whim, or as a device to reduce or avoid the protection given to victims of rape by the limitations imposed on the questions which may be asked of them, or as a forensic technique to put the defendant at a disadvantage. The issue of the complainant's sexual experience only arose for consideration because, as an integral part of the incident, and to avoid the rape, she made what was admittedly an untruthful claim that she was a virgin. What she said to the appellant was relevant and admissible. From the Crown's point of view, it was important evidence bearing on the issue of consent. No doubt too, it was important to the complainant to explain how she had reacted, and what she had said, to avoid the dreadful incident as it was unfolding. Nevertheless, to avoid the jury being misled by the Crown, a formula was agreed between counsel and permitted by the judge because the falsity needed to be exposed to the jury. The result of the agreed formula was its deployment in the forensic process to suggest that the confidence of the jury in the complainant's credibility might be undermined by the certain knowledge that she had told an admitted lie. In our judgment no justified complaint can be directed at the admission of this evidence.
28. We should in any event add that, if and when the argument advanced by Mr Mansfield in this appeal is renewed in a different case, close consideration should be given to the protective effect of section 78 of the Police and Criminal Evidence Act 1984, drawn to our attention by Mr Victor Temple QC for the Crown. This familiar statutory provision needs no recital. In our judgment, however, the provision is perfectly apt to be deployed in an appropriate case, where it is thought by the judge that the impact of section 41 of the 1999 Act on the defendant may produce an adverse effect on the fairness of the proceedings. In our judgment, however, there was no such unfairness in this case. The judge was not asked to exclude any part of the complainant's evidence about what she said to the appellant. If such an application had been made, it would, we have no doubt, have been rejected.
29. We should add that there was no evidence at trial, and despite what we know must have been a huge investigation post trial, there is still no evidence which suggests that there was or is material available to be deployed about the complainant's previous sexual history by the defence which was excluded by the statutory provisions. The reality is that if the jury concluded that the appellant's account of the circumstances in which sexual intercourse took place was or may have been truthful, he would have been acquitted. If his account may have been truthful, the jury would have been left with significant reservations about the complainant's evidence about the circumstances in which sexual intercourse occurred, as well as her account of very limited sexual experience. Plainly her evidence that the appellant raped her was accepted.
30. In our judgment, no issue of principle arose on this ground of appeal. The evidence of the complainant was rightly admitted. The appellant was not subjected to any unfairness. Accordingly this ground was rejected. The remaining grounds of appeal relate to "fresh evidence", and as we have already indicated, our conclusion on the first ground is without prejudice to the remaining, but discrete, question of fresh evidence, which will be examined in due course.