Neutral Citation Number: [2009] EWCA Crim 434
Case No: 2008/00608 B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HH Judge Goymer
T20067499
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/03/2009
Before :

LORD JUSTICE THOMAS
MR JUSTICE GRIFFITH WILLIAMS
and
SIR ROBERT NELSON
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Between :

	Regina	Respondent	
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	Wayne Lee Harris	Appellant	

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Mr Jonathan Edwards for the Appellant
Miss Grace Ong for the Respondent

Hearing date: 19 November 2008
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Judgment

Lord Justice Thomas: 
1.	On 17 December 2007 the appellant, then aged 38, was convicted of false imprisonment, assault occasioning actual bodily harm and on the second of two counts of rape before His Honour Judge Goymer and a jury at Southwark Crown Court.  He was sentenced the following day to 8 years imprisonment for the rape with concurrent sentences on the other offences.  The appellant was acquitted of the first count of rape; other counts on the indictment were ordered to lie on the file.  He appeals against his conviction by leave of the Single Judge on two issues:
i)	The ruling of the judge refusing an application to cross-examine the complainant under s.41 of the Youth Justice and Criminal Evidence Act 1999.
ii)	The judge’s decision to admit bad character evidence in respect of the appellant.
The facts
2.	The complainant was a teacher.  On 1 July 2006 she travelled from her home in Hackney to the West End of London.  There she drank considerable quantities of alcohol.  On her way back home in the early hours of Sunday, 2 July 2006 she met the appellant who was living on the streets.  She had never met him before.  She invited him back to her flat in Hackney.  On the way back to her flat they stopped at a convenience store to buy alcohol.  They met a further person, unknown to both of them, who happened to be Polish and who also was living on the streets in Hackney.  He was invited to accompany them to the flat.
3.	After they arrived back in the flat, the alcohol which had been purchased was consumed.  It was common ground that sexual intercourse took place between the appellant and the complainant on two separate occasions between the time they returned to the flat in the early hours of Sunday, 2 July 2006 and 8.35 a.m. that morning.  The time of 8.35 a.m. is taken because police had attended at the flat at that time after telephone calls from the complainant’s neighbours about noise and disturbance at her flat.  
4.	When the door was opened to the police, the complainant ran from the flat naked from the waist down screaming that she had been kidnapped and raped by the appellant.  
The evidence
5.	The complainant’s evidence was 
i)	They had returned to her flat by taxi.  After they had arrived, all was well for a while.  The appellant had then started looking round for more alcohol and seemed demanding.  She gave him her bank card and wrote down her pin number so he could go to the cash point to withdraw money with which to buy more alcohol.  When the appellant returned, he was aggressive and was screaming at her that there was no money in her account; he looked slightly manic.  He started rummaging around the kitchen looking for alcohol and found a bottle of liqueur.  She did not want it opened but he nevertheless opened it and swigged from it.  
ii)	He then went to her kitchen drawer where her knives were kept and got them out.  He wrestled her to the ground and got on top of her.  She fought back and punched him three times in the face causing his nose to bleed.  He got hold of her by her wrists and neck and pinned her to the floor.  He held her throat with one hand while pulling her trousers down with the other.  He then used a pair of scissors to cut her knickers on either side of the hips.  
iii)	The appellant then asked for a belt which he used to tie up the Polish man.  The complainant made a run for the door to try to escape, but a large barbeque fork had been forced into the chain to prevent the door being opened.  The appellant dragged the complainant back into the flat and wrestled her to the ground again.  He threatened to kill her and demanded that she put her legs up.  He then penetrated her vagina with his penis a number of times while they were both on the floor.  He continued to beat her and she continued to fight back.  He then forced her to take a bath in hot water and demanded she clean herself and he also scrubbed her very hard between her legs.  
iv)	After she got out of the bath the appellant’s behaviour changed.  He collapsed on the hall floor and started sobbing and crying.  She tried to assure him that all would be OK.  She tried to escape and got out of the flat, but he went after her, dragged her back in and became manic.  He made her take her clothes off, and got the knives.  He pushed her onto the edge of the bed and threatened both vaginal and anal sexual intercourse with her.  He gripped her round her throat while he held a knife against her face and then her genital area.  He verbally abused her before again penetrating her vagina with his penis whilst he held the knife to her face.  On neither occasion did the appellant use a condom. 
v)	The appellant then looked around for food and said there was enough there for him to keep her and the Polish man hostage for 5 days.  He instructed her to wash her clothes in the washing machine.  She lost all track of time.  When the police arrived she ran out in the manner which we have described.  
vi)	In her cross-examination, she denied that she had consented to sexual intercourse with the appellant.  She said that she had led an openly homosexual lifestyle since she was 21 and was not interested in sex with men.  She had never previously invited strangers to her flat.  She accepted that she had been taking anti-depressants and that she had in the past drunk excessively.  
6.	The other evidence adduced by the Crown included:
i)	One of the police officers who examined the flat some hours later in the day had found a piece of paper with what appeared to be a pin number on it.  He had also found various knives, including a large black-handled knife just inside a holdall.  He had not recovered the complainant’s underwear or the barbeque fork.  
ii)	Another officer had gone back with the complainant on the afternoon and evening of 3 July where a pair of black knickers and a barbeque fork were found on the floor.  
iii)	There was forensic evidence of finding the appellant’s semen stains on the sheet, resulting probably from more than one instance of ejaculation.  No seminal stains on the sheets pre-dating the last time the sheet had been washed had been found.  No seminal stains were found on the floor.  He also examined the complainant’s thong style black knickers and found the waistband had been cut at the left hip and the crotch panel had been cut from the rear panel.  They had not been cut on both sides of the hip, as the complainant had said.
iv)	A medical examination of the complainant revealed injuries to her face and neck.  The injuries to the face were compatible with a fall or a punch, but those to the neck were likely to have been caused by scratching.  There were also finger tip injuries to the arms which had been caused by gripping.  There was no injury to the genital area.  The judge pointed out to the jury that the majority of women alleging rape do not have significant genital injury.  The absence of injury to the genital area neither supported nor refuted the allegation that intercourse had taken place without consent.
v)	Her blood alcohol level was calculated as being 2½ times the legal limit for driving; she had also taken anti-depressant drugs.
7.	The Polish man did not give evidence; he could not be found.  Although a statement had been taken from him, neither side applied to put the statement before the jury.  
8.	The appellant did not give evidence.  However in interview (which was read and in part played to the jury) he had said: 
i)	They had returned to the complainant’s flat by bus.  At one stage it braked sharply and she had fallen and may well have injured her face.  
ii)	They had consensual sex on her bed whilst the Polish man was asleep. They had both had a bath before he had gone out to the shop with her bank card.  She had given him the credit card with a number on it.
iii)	When he returned to the flat they again had consensual sex, both vaginal and oral, on her bed.  
iv)	She had picked up a knife and tried to attack him and he had grabbed the knife.  The other man also went to grab the knife and had been cut in the process.  The complainant had hit the appellant and put a knife to his face.  She subsequently grabbed a second knife.  He had acted in self defence.  
v)	He tried to get out of the flat but did not succeed until the police arrived.  Any assault by him on the complainant was simply his response to something that she had started and he was simply trying to defend himself against attack.  They had both oral and vaginal sex.
9.	By their verdict, reached after a retirement of just over an hour, the jury found the appellant not guilty of the first count of rape (relating to the allegations set out at paragraph 5.iii)  above), but found him guilty of the second count of rape (relating to the matters set out at paragraph 5.iv) above), false imprisonment and assault occasioning actual bodily harm,
The application under s.41 of the Youth Justice and Criminal Evidence Act 1999
10.	We will first consider the judge’s ruling on the application made under s.41 (3) (c) of the Youth Justice and Criminal Evidence Act 1999.  As is well known, the section prohibits the cross-examination of a complainant about her sexual behaviour, unless the court gives leave.  It can only do so if satisfied that s.(3) or (5) applies and a refusal of leave might have the effect of making the verdict unsafe.  It was initially accepted that s.41(5) was of no application; after the judge had ruled that s.41(3) did not permit the cross-examination, an application was made under s.41(5), but refused.  No appeal has been brought against that ruling.
11.	S.41(3) provides, so far as material:
“This subsection applies if the evidence or question relates to a relevant issue in the case and either— ”
(a) ..
(b) …
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar— 
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or 
(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, 
that the similarity cannot reasonably be explained as a coincidence.
12.	It is also necessary to refer to s.41(4) as it contains a further qualification:
“For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.”
13.	The application made on behalf of the appellant was initially made at the first trial of the appellant on 12 February 2007.  The appellant then sought to cross-examine the complainant on the basis of two documents that had been disclosed from the psychiatric and medical records relating to the complainant which showed a history of depressive episodes and self harm dating back to 2004.
i)	The first was contained in a letter dated 17 December 2005 from a senior clinical nurse practitioner at the Homerton Hospital in London to the complainant’s General Practitioner.  It referred to a visit by the complainant to the Accident and Emergency Unit on 17 December 2005 seeking support after a period of increased anxiety.  In the course of the attendance at the Accident and Emergency Unit she was recorded by the nurse as stating the following:
“She described life choices involving behaviours which potentially puts her at risk of abuse from others, i.e. casual sex with illegal taxi drivers, excessive alcohol intake, etc.  She reported awareness of the dangers of the behaviour and also described a wish to punish herself.”
The nurse asked if the complainant could be referred for an assessment with Primary Health psychology.  
ii)	A few months later on 27 April 2006 after a visit made by her that day to her General Practitioner, he wrote to the Psychiatric Department at Homerton Hospital asking if the complainant could be seen as an outpatient, as the appointment made by the psychiatric nurse had been sent to the wrong address.  The letter of referral stated:
“She presents today with increased anxiety, low esteem and thoughts of self harm.  My opinion accords with that of [the clinical nurse practitioner].  [The complainant] for some reason punishes herself with excess alcohol and risky sexual liaisons.”
There was a chaser in respect of this noting that the complainant had not received an appointment in June 2006 and again, after the events of 2 July 2006.
14.	Counsel for the appellant sought to cross-examine as to the source of the information set out in the letters, ask for details of the occasions referred to, and her attitude to risk in the light of that.  It was contended that the reference in the two letters to causal sex with others and risky sexual encounters when in drink was to a similar course of conduct to the events out of which the charges against the appellant had arisen.  It would not be general cross-examination, but cross-examination directed at specific instances.  The submission was that the similarity lay in the risky sexual encounter in which the complainant had had sexual intercourse with a stranger; it had been made clear in R v A (No 2)[2001]UKHL 25 ([2002] 1 AC 45) at paragraph 133 that striking similarity was not required.
15.	Two statements were taken from her about the notes on 12 February 2007.  She said that she had been engaged in a heterosexual relationship several years ago.  In the summer of 2005, she had had heterosexual intercourse with a cabdriver whom she knew, but had since then lived an entirely homosexual lifestyle.  The notes taken can only have referred to what had happened with the taxi driver on one occasion; the reference to casual sex was a reference to sex with women she knew.  The notes had misinterpreted what she had said.
16.	The application made at the first trial was refused; we have not seen the ruling. However that trial had to be abandoned for reasons, which though surprising, are irrelevant. 
17.	An identical application was renewed at the commencement of the trial before HH Judge Goymer.  The Judge refused the application.  He accepted that it was not a material consideration that, if as a collateral consequence of the evidence being admitted, the credibility of the complainant would be impugned.  He considered however that there was no similarity within the meaning of s.41(3)(c); to allow such cross-examination would have been tantamount to saying that the complainant was a person who had engaged in casual sex in the past and therefore would have been likely to do so on the occasion she was with the appellant.  Even if there had been, refusal of leave was not such that it would have had the effect of rendering the verdict unsafe. 
18.	It is important to point out that no application was made or renewed after the complainant had, during cross-examination, given evidence of her homosexual lifestyle as we have set out at paragraph 5.vi)  above.  As no application was then made, given that there might well have been reasons for not making it then or it might simply have been an oversight by obviously competent counsel, we could, on this appeal, not consider what the judge might have then done, if such an application had been made.  In these circumstances, as the application was not made at the trial, it cannot be raised now.   
19.	The issue that therefore arises on this appeal is whether we should uphold the ruling made by the judge at the outset of the trial.  Judgements on what is similar for the purposes of s.41 are not always easy; some cases are easy – see for example  T [2004] 2 Cr App R 552, where the similarity was so clear that it was not disputed – but some, such as this, are not.  In this case we consider that the judge adopted a view on similarity which was open to him within that margin of judgement open to a decision maker.  We consider that he was entitled to conclude that what was set out in the letters was not sufficiently similar to what was alleged by the appellant to have happened on the night in issue.   He was also entitled to conclude that cross-examination on the basis of what was set out in the two letters would have brought into play matters in relation to her general sexual behaviour and not the similarity of the two occasions.  We therefore consider that the ruling was one that cannot be successfully challenged in this court.
20.	Moreover, it is clear from the complainant’s statement of 12 February 2007, what she would have stated about the letters had she been cross-examined about them.  No steps had been taken on behalf of the appellant to investigate the issue and in particular to see if her account was accepted by the nurse and the General Practitioner or whether they maintained what was said in the letters.   If she had been cross-examined on the letters, there would have been no other evidence to contradict what she had made clear she would say.  In those circumstances, it would be difficult to see how it could have been asserted that there was any similarity, without the principal purpose of cross-examination conducted in that way being to impugn the credibility of the complainant.  The appellant was not in a position to call any other evidence.  If she had been cross-examined without the letters being put to her, it is difficult to see what purpose could have been achieved.  Difficulties similar to those identified by this court in R v E  [2005] Crim LR 227 and R v V [2006] EWCA Crim 1901 arose and had not been addressed.  There is therefore this further basis on which the decision of the judge could be upheld.
The bad character evidence
21.	The appellant had a large number of previous convictions for offences of violence between 1993 and 2007, including assault with intent to resist arrest, assault on the police, common assault, affray, assault occasioning actual bodily harm.  As was apparent from a detailed summary provide by the Crown, out of the 56 offences of violence or threatened violence, 32 were against police officers.  However one involved the use of a knife and one possession of knives.  He had no previous convictions for sexual offences.  The Crown applied under the gateway set out under s.101(1)(d) of the Criminal Justice Act 2003, namely that it was relevant to an important matter in issue.  That matter was under s.103(1)(a) the question of whether the appellant had a propensity to commit offences of the kind with which he was charged, except where his having the propensity made it no more likely that he was guilty of the offence.  Counsel for the appellant opposed the application on the basis that the primary issue in the case was whether the complainant had consented to sexual intercourse.  There were no previous convictions for sexual offences.  The convictions were largely for assault against the police and indicated at most that he reacted against the police.  The convictions were therefore not relevant to the issue of propensity in relation to the main issues; they were only relevant to the count of assault and it would be prejudicial to admit them, particularly some considering their age.
22.	The Judge ruled that one of the crucial issues in the case was who was responsible for starting the violence – the appellant to subdue her for sexual purposes or the complainant who had become violent.  This was not only relevant to the count under s.47 but also to the counts of rape, as, if unlawful violence was used on the complainant, that would create an evidential presumption against consent under s.75 of the Sexual Offences Act 2003.  He considered that the offences did establish propensity to use violence when thwarted; they were not limited to assaults on the police by a man who lived on the street.  The propensity did make it more likely that he committed the offences charged, as it went to the issue of responsibility for starting the violence.  It was not unfair or unjust to admit them even though they went back to 1993, as they showed a consistent pattern of violence.  However, he made it clear that he was not prepared to allow the Crown to adduce evidence of the convictions in respect of offensive weapons, (as these had occurred in 1995 and 1997) and criminal damage (as they were irrelevant).
23.	In the course of his summing up which put the issues and the evidence before the jury with very great clarity, the judge directed the jury that the convictions might show he had a tendency to violence and that was relevant to the issue of deciding who the aggressor was when violence was used.  He gave them the usual warnings as to how to treat this evidence.  He then reminded the jury that the appellant had no previous convictions for sexual offences.  In respect of the offences of violence, a very large number were for assaults on the police.  It might be that they arose out of nothing more than resentment at the way he was being treated by the police.  No criticism was or could properly be made of the very fair and clear direction given.
24.	It was submitted to us that the judge was wrong to admit the evidence, as the offences did not show a propensity to use violence for gain or to subdue a person, let alone to obtain sexual relations.  The violence was of an altogether different character – violence against those in authority In any event the judge should have exercised his discretion to exclude the evidence, given the risk of too much weight being attached to them and the risk of prejudice. 
25.	In our view the judge was right to admit the evidence, provided he gave the jury a proper direction as to how the evidence was to be used.  The argument advanced on behalf of the appellant did not distinguish between relevance and the use the jury were to make of it and its weight.  The question as to whether the appellant had a propensity to violence was indeed relevant for the reasons the judge gave.  The circumstances in which the violence had been used in the past went to the way in which the jury could use and evaluate that evidence, unless the evidence would adversely affect the fairness of the proceedings (s.101(3)) in which case, though relevant, the judge should exclude it.  We do not consider that the judge was wrong in the view he took that the admission of the evidence would not adversely affect the fairness of the proceedings.  As was made clear in R v Renda [2005] EWCA Crim 2826 ([2006] 1 Cr App R 24) at paragraph 3, this Court will always be reluctant to interfere with what is essentially a fact specific decision.  In our view, the judge was right to admit the evidence.  As it was accepted that no criticism could be made of the very clear direction given, this ground of appeal must also fail.
Conclusion
26.	We have considered the overall safety of the conviction, but cannot conclude that it was unsafe.  The appeal must therefore be dismissed.