England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SWANSEA CROWN COURT
HH JUDGE MORTON
T2002/7423

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/08/2009

Sir Anthony May, President of the Queen's Bench Division:

1. As Lord Bingham CJ said in R v Steven Jones [1997] 1 Cr. App. R 86 at 93, the provisions for admitting fresh evidence on an appeal in section 23 of the Criminal Appeal Act 1968 were not framed with expert evidence prominently in mind. But it is accepted that section 23 may apply to expert evidence and the court did not wish to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction. As is well known, the section gives the Court of Appeal a discretion, if they think it necessary and expedient in the interests of justice, to receive evidence which was not adduced in the proceedings from which the appeal lies. Of the matters in section 23(2) to which the court is required to have regard, as Lord Bingham said, the requirement in subsection (2)(a) that the evidence should appear to the court to be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive, but which is unlikely to be thought to be incapable of belief in the ordinary sense. The reference in subsection (2)(d) to a reasonable explanation for the failure to adduce the evidence before the jury in the original proceedings again applies more aptly to factual evidence of which a party is unaware, or could not adduce, than to expert evidence, since, if one expert is unavailable to testify at a trial, a party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. But, said Lord Bingham, it would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury.
2. The present appeal against conviction by David Meachen, upon a reference under sections 9 to 12 of the Criminal Appeal Act 1995 by the Criminal Cases Review Commission, would require the court to go further even than Lord Bingham contemplated in R v Jones. It depends on the court being persuaded to admit as fresh evidence under section 23 of the 1968 Act (a) further evidence of an expert witness who was called at the trial, and (b) evidence of a further expert essentially to the same effect as that of an expert witness who was called at the trial. No explanation is offered for the failure to adduce this evidence at the appellant's trial beyond the feeble supposition that those then representing the appellant did not think of it. As to the evidence of the further expert to the same effect as expert evidence given at the trial, we think it questionable whether this should be regarded as fresh evidence which was not adduced in the proceedings within the ambit of section 23. It is rather evidence which was adduced in the proceedings, which the jury must be taken surely to have rejected, but which the appellant now seeks to persuade the court to receive again in the mouth of a different expert. It would undoubtedly subvert the trial process, if appellants were able to supplement on appeal opinion evidence which was adduced unsuccessfully in the proceedings with essentially the same opinion evidence from an additional and supposedly more persuasive expert. Admitting such evidence would not afford any ground for allowing the appeal, because the jury by their verdict have already surely rejected the essence of this supposedly fresh evidence.
3. The appellant was convicted by a jury at the Crown Court in Swansea on the 22^nd May 2003 before His Honour Judge Morton on one count (count 3) of causing grievous bodily harm with intent to do so. He was sentenced on that count on the following day to 10 years imprisonment. He had been acquitted on the judge's direction of a count alleging rape. He had pleaded guilty to counts of indecent assault and inflicting grievous bodily harm following a ruling by the judge about the law relating to consent which this court on 28^th February 2006 held to be erroneous. The court then allowed the appellant's appeal against his conviction on those two counts, but dismissed his appeal against his conviction on count 3, holding that the judge's direction as to consent in relation to that count was correct, and that the fact that he had pleaded guilty to the other two counts made no difference. The court's judgment on that occasion may be found at [2006] EWCA Crim. 424 for further details which this judgment need not contain.
4. The facts are distasteful. On the evening of 4^th August 2002, the 37 year old complainant, who had been out drinking with her boyfriend for the day, went to Carmarthen Town Football Club where she met the appellant, previously unknown to her. They started a conversation. They left together and went back to the house of the complainant's niece and then, shortly after midnight, they went by taxi to the complainant's home a mile away. The complainant had no recollection of events after leaving her niece's house, except that the appellant was at one point on the sofa with her in her living room. The appellant left her home by taxi at 5.10 a.m. that morning.
5. When the complainant woke around 7 a.m. that morning, she was in a lot of pain and was suffering considerable loss of blood from her peri-anal area. She went next door to a neighbour, and then consulted her general practitioner. After being initially sent home from hospital, a subsequent hospital examination revealed that she had extensive bruising of the peri-anal area together with acute splitting of the anal canal extending into the rectum. The injury was so severe that a colostomy was performed and she was fitted with a colostomy bag.
6. The complainant gave evidence that on the day in question she had drunk two glasses of wine, a pint of cider and a double vodka. She was taking tablets for depression. While she was at the football club, she had a further pint and a quarter of cider. It was the appellant's evidence that during the evening he had obtained, and they had each had drunk, half a cup of liquid gammahydroxybutyrate (GHB), which is popularly known as the "date rape" drug. It is evident that the combination of this and alcohol may have rendered the complainant insensible.
7. Mr Carr was the surgeon who examined, treated and operated on the complainant. He is a consultant colon and rectal surgeon in Swansea with considerable experience of injuries caused in the homosexual community by the practice of "fisting" – thrusting a fist into the anus of another man. Mr Carr told the jury that there was considerable bruising of the complainant's anus and the area around it. There was splitting of the anal canal both at the front and at the back. The splitting at the back was deep and extensive, extending to the fatty tissues behind the rectum. The sphincter muscle was torn. Mr Carr said that these were very unusual injuries, the most severe he had ever seen. The only comparable injury he had seen was in fisting incidents in the homosexual community. The complainant's bruising was absolutely horrendous on the buttocks and the anal canal. If the complainant were not anesthetised, the pain would have been absolutely unbearable, inconceivable in fact.
8. The appellant's evidence was that, when he and the complainant were at her home, they quickly became intimate sexually. She was a willing and active participant. He failed to achieve an erection. She was enjoying penetration of both her vagina and her anus with his fingers. She ended up naked sitting astride him with three of his fingers in her anus and his thumb of the same hand in her vagina. In this state, she was thrusting up and down on his fingers and thumb for some 4 or 5 minutes giving every sign of reaching a sexual climax. After that, she got off saying she was going to bed. She managed to get upstairs. He noticed no injury or bleeding downstairs. It was only when he went upstairs to wash that he noticed blood. He thought she was having a period and said so; to which she replied "It's only a bit. It doesn't matter". He noticed that the bottle of GHB had been moved. He assumed that she had taken a little more. He himself finished the bottle. When he later left the house, he did not know that she was injured.
9. The appellant's case therefore was that the complainant's injuries were accidentally caused by consensual penetration of the anus by his fingers in the course of vigorous consensual sexual activity. He had not assaulted her and had not intended to cause her harm. The Crown's case was that the appellant's account of how the complainant came by her injuries was untrue. On the contrary, the complainant's injuries were only consistent with intentional fisting or similarly executed assault to a probably insensible victim and that an intent to cause the really serious harm which in fact resulted could safely be inferred.
10. Mr Carr's opinion was that the complainant's injuries which he saw and treated could not have been caused in the way which the appellant described. The appellant called an expert colon and rectal surgeon, Mr Foster, whose opinion was that the injuries could have been caused by the activity which the appellant described. Four or five minutes thrusting onto the appellant's rigidly held three fingers could have caused the injuries. Mr Foster agreed that, if the complainant was not anaesthetised, she would have suffered severe pain.
11. That being the evidence and those the differing expert opinions, the judge directed the jury that, if the complainant's injuries were or might have been caused as the appellant said, that is by the appellant's three fingers in the complainant's anus and four or five minutes of her jumping up and down on them, they must acquit the appellant of the section 18 charge. Upon this direction, the jury convicted the appellant, and must be taken surely to have rejected the appellant's evidence and Mr Foster's opinion.
12. Mr Slaughter specialises in detecting drugs in samples taken from people and from objects such as glasses. He obtained blood and urine samples from both the complainant and the appellant. These were given long after the incident, in the case of the complainant 18 to 20 hours later. Both tested positive for cannabis. The complainant had a low level of alcohol in her urine, which was probably residual alcohol from the time of the incident. Mr Slaughter said in his evidence at the time that he could not do a proper calculation at that distance in time, but that it was probable that at the time of the incident she was highly intoxicated. Being put onto the possibility of GHB at a later date, Mr Slaughter went back to the samples and tested them finding a low level of GHB. He said that it was all very approximate, but that GHB was very rapidly eliminated from the body. He said that, if the incident was 18 to 20 hours before the taking of the sample, and if the complainant had not taken GHB after the incident, she would have taken a high dose of GHB, probably higher than a stupefying dose before the incident itself. The judge reminded the jury that it was the appellant's evidence that the complainant had taken a top up dose of GHB after the incident. Mr Slaughter gave evidence of the stupefying effect of high doses of GHB. He also said that cannabis has an intoxicating effect roughly similar to alcohol and that the effects of cannabis and alcohol together were cumulative.
13. In making the reference which has resulted in this appeal, the Commission expressed the view that a central issue as to the pain which the complainant endured because of her injuries and her level of consciousness was left, to all intents and purposes, unaddressed. The Commission had therefore obtained additional evidence from Mr Slaughter as to the complainant's projected level of intoxication at the time she sustained her injuries; and from Professor Payne-James as to the analgesic or anaesthetic effect of a combination of alcohol and GHB, and whether or not the complainant's injuries could have been caused during consensual sexual activity as claimed by the appellant. The Commission expressly recognised that tendering this evidence might run into the problems which we have identified deriving from R v Jones. But they regarded it as in the interests of justice to have a third medical opinion where Mr Carr and Mr Foster had disagreed. The Commission considered that there was a real possibility that this court would receive this fresh evidence. They reiterated a conclusion that the issue of the complainant's perception of pain, which was central to both the prosecution and defence cases, was inadequately addressed at the trial.
14. We are unconvinced that the complainant's perception of pain was central to the cases of either the prosecution or the defence. The prosecution case depended on the extent of the physical injuries which the complainant suffered and which Mr Carr saw and described, and on his opinion as to how they could or could not have been caused. It was his narrative opinion, which Mr Foster shared, that the complainant would have suffered excruciating and unbearable pain when the injuries were inflicted, if she were not insensible at the time; and it was a derivative probability that she may well have been insensible to pain through a combination of alcohol and drugs. But the prosecution case did not need to establish this one way or the other. It was sufficient to establish the fact and extent of the physical injuries and Mr Carr's opinion as to their cause. As to the defence case, there was perhaps a forensic dilemma. The case was that the injuries, unappreciated by the appellant at the time, were caused by the activity which he described. The dilemma was that the case required the complainant to be sufficiently conscious to be able to thrust herself up and down for 4 or 5 minutes and then to take herself upstairs to bed, but sufficiently intoxicated or drugged not to feel excruciating pain during the 4 to 5 minutes. It remains, however, we think, that the complainant's perception of pain was not the central issue, which was whether the jury was sure that Mr Carr was right that the complainant's injuries could not have been caused by the activity which the appellant described.
15. As we have said, Mr Slaughter gave evidence at the applicant's trial and could quite well have been asked to give further evidence then such as he now tenders at the Commission's request. No explanation is available for his failure to do so. His fresh witness statement explains that Dr Payne-James had been consulted and had requested a "back calculation" of the alcohol found in the complainant's urine sample. It will be recalled that Mr Slaughter had said in his evidence at the trial that he could not do a proper calculation of this kind. In the fresh witness statement, he says that it is not possible to say definitely that the level of alcohol detected in the sample was a genuine residue of alcohol consumed. He says that it is not normally the practice of the Forensic Science Service to perform back calculations upon very low urine alcohol levels. He had already said in his evidence at trial that the presence of any alcohol in a urine sample after such a period of time indicates that, assuming the complainant drank no alcohol after the incident, the complainant would have had a highly intoxicating alcohol level in her blood stream at the time of the incident. Mr Slaughter then undertakes a calculation with reference to a number of variables to produce a blood alcohol level of between 150 and 340mg per 100ml with a most probable level of 250mg per 100ml at midnight. He observes that the potential range is very wide, but using elimination rates close to the average gives a highly intoxication level of 3 to 4 times the driving limit. Mr Slaughter then did a calculation based on the amount of alcohol which the complainant said she had consumed. This produced a range of 140 to 170mg per 100ml with a most probable level of 150mg. This showed a considerable discrepancy with the back calculation suggesting that she had probably drunk more alcohol than she said she had.
16. In our view, this is intrinsically unhelpful as potential fresh evidence and it would take an appeal nowhere. It in effect confirms Mr Slaughter's original evidence that he could not do a proper calculation, certainly not one with any degree of confident accuracy. The possible range is too great for any other conclusion than that the complainant was, as the evidence at trial already indicated, highly intoxicated at the time. It does not take account of the additional effects of cannabis and GHB.
17. Professor Payne-James' comments include that pain perception can be altered by all three of alcohol, GHB and cannabis; and that the effect of alcohol alone could have resulted in a reduction of pain perception such that in the circumstances it was not perceived in the ordinary way. Considering the complainant's injuries, he had no doubt that pain would have been experienced, but it was impossible to determine the degree to which intoxicating agents reduced or abolished the complainant's pain sensation at the time. In commenting on the question whether the consumption of GHB would permit the complainant to be a conscious and active participant, he believed that too much emphasis was placed on GHB alone. He was quite sure that each intoxicating agent on its own would be capable of reducing the perception of pain and the potential effect of alcohol had been explored by Mr Slaughter. In a second report, he commented that there is a huge variation between individuals in response to different levels of drugs and alcohol. It was not known how the complainant may have responded to unknown levels of drugs and alcohol consumed. Sufficient levels for the individual may result in unconsciousness, but equally the possibility of being conscious and actively participating may arise. The back calculation figures provided by Mr Slaughter could potentially put the complainant into a near unconscious level. But the problem was that the possible levels of alcohol and drugs were speculative. In answer to a question about the complainant's possible levels of consciousness and active participation, he expressed the view that all the scenarios suggested were possible because of the lack of evidence concerning actual amounts of drugs and alcohol. The variability and the effects of the respective drugs and alcohol, alone or combined, did not make it possible to describe a likelihood for each or all of those scenarios.
18. Thus in reality the additional material provided by Mr Slaughter, and Professor Payne-James' comments arising from it, takes the case no further than it was at trial, where it was established that the complainant was highly intoxicated and may have been insensible; but that, if she were not anaesthetised by drink or drugs or both, she would have suffered excruciating pain. This proposed fresh evidence is not additionally probative of anything, and no case is made out that the court should receive it.
19. The first point emphasised in the appellant's written grounds of appeal and by Mr Barker QC orally in support of the appeal is that a central issue at trial was how painful the injuries would have been in the light of the quantity of alcohol and GHB taken by the complainant. We have already indicated that we do not agree that this was the central issue. However that may be, we do not consider that the fresh evidence which we have so far considered takes the case materially beyond where it was at trial.
20. The other issue identified in the written grounds of appeal as central was how could the complainant's injuries have been sustained. We agree that this was the central issue, which turned at trial on a contest of opinion between Mr Carr and Mr Foster. There is no question but that Mr Foster was as competent as Mr Carr to give opinion evidence on this issue, and he did so.
21. On this issue, Professor Payne-James considered the appellant's description of the sexual activity in which he and the complainant engaged. His opinion was that there was no doubt that this setting created a clear potential for splitting of the anal canal and lower rectal tissues as deep forceful thrusts continued with perhaps part of the palm at the base of the fingers being included in the penetrative act. The length of fingers would adequately explain the splitting of the tissues in the lower rectum. He was unable to see how Mr Carr was able to be certain that these injuries could not have occurred based on the appellant's account. He believed it was a reasonable possibility that the complainant's injuries were caused as the appellant claimed.
22. Mr Carr responded to Professor Payne-James' first report, considering it in some detail, but saying that he still believed that the complainant's injuries were caused by either a foreign body or really forcible dilation of the anal canal with both hands; and that he still did not believe the account given by the appellant of the complainant thrusting onto three of his fingers. He remained convinced that the appellant would not have inflicted the injuries if he had not intended to do so. He must have been aware of the bleeding, if not the pain. To this, Professor Payne-James responded with the additional comment that there were published cases where profuse bleeding was not immediately evident; and that the appellant may not have noticed blood because of his own intoxication. Mr Carr responded to this, saying, correctly in our view, that causation was the real issue and that he had disagreed with Mr Foster and had no reason to move away from his original opinion.
23. As we have already indicated, we do not regard this part of Professor Payne-James' reports as fresh evidence not adduced at the trial. It is essentially the same evidence tendered by a different expert. Mr Foster had already expressed the essence of this opinion, as his subsequent letter of 29^th March 2008 to the Commission explains. Just as it would subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury, so it would subvert the trial process, and in substance add nothing, if the defendant were generally free to mount on appeal the same expert case as was advanced at trial with a different and additional expert. The Commission's idea that it is appropriate to revisit on an appeal an issue upon which experts disagreed at trial, but which the jury by their verdict resolved, with the aid of a third expert is, in our judgment, erroneous. If it were regarded as necessary to bolster an expert opinion by that of a second supporting expert, that should be done at trial, although in this context we are bound to say that a case of this kind is not made intrinsically more persuasive because two experts express the same opinion. We do not encourage parties to expect that public money should be spent on duplicating experts.
24. Mr Barker acknowledges the difficulty from R v Jones in persuading the court to receive this part of Professor Payne-James' evidence. The essence of his eventual submission was that the pain possibilities were not explored; and that, if they had been, it would have emerged that it was possible for the complainant to have suffered the injuries while remaining sufficiently conscious, but without experiencing great pain. That, he said, applies whatever view is taken about causation. The argument would not provide a challenge to Mr Carr's evidence, accepted by the jury, about causation, but it would provide a case which questioned whether it was surely proved that the appellant had the necessary intent.
25. As to this submission, it should first be said that it was not the appellant's case that, if the injuries were caused, contrary to his own evidence, as the prosecution and Mr Carr maintained, he did not intend to cause really serious harm. Second, it was Mr Carr's opinion that, for the appellant to inflict the injuries in the way Mr Carr maintained, he must have intended really serious harm. Third, the judge's directions on the law relating to intent were unimpeachable and included a direction that the prosecution case was that the appellant inserted something the size of a fist or greater into the complainant's anus; and that, if the jury were sure that that conclusion could be drawn, the further conclusion followed as a certainty – that is what the prosecution said – namely, that the appellant must have intended to do really serious harm. Whether the jury were sure that they could draw these two conclusions was entirely a matter for them. The judge did not remind the jury that it was the defence case in the alternative (because it was not) that, even if the jury were sure that the injuries were caused as Mr Carr maintained, the jury could not be sure that the appellant intended to cause really serious harm. In truth, that would not have been a remotely viable alternative case, and the proposed fresh evidence does not make it any more viable. The extent to which the complainant was or was not insensible at the time of the incident was and remains entirely speculative. The inference as to the appellant's intent, if the jury surely accepted Mr Carr's opinion as to causation, was and remains secure.
26. Paragraph 8 of the grounds of appeal contains some fringe criticisms of the judge's summing up which did not feature in support of the Commission's reference, which were not advanced in the earlier appeal against conviction to this court, which Mr Barker did not dwell on, and which are not persuasive in support of a case that the conviction is unsafe. Paragraph 13 of the grounds of appeal, again not emphasised by Mr Barker, in substance restates a submission which was rejected in the earlier appeal to this court.
27. For the reasons which we have given, we declined to receive the fresh evidence. In our judgment, the conviction under appeal is safe. The appeal is dismissed.