England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		7 February 2011

LORD JUSTICE JACKSON:

1. This judgment is in four parts, namely:

Part 1. Introduction,

Part 2. The Facts,

Part 3. The Criminal Proceedings,

Part 4. The Appeal to the Court of Appeal.

Part 1. Introduction

2. This is an appeal against conviction by a man who has been convicted of rape. The essence of this appeal is an assertion that the appellant's counsel was not permitted to pursue certain lines of cross-examination when cross-examining the victim of the offences.
3. The victim is entitled to anonymity and I shall therefore refer to her as "Z".
4. After these brief introductory remarks let me now turn to the facts.

Part 2. The Facts

5. On 10 July 1999 the appellant married a lady called JM, who already had five daughters. The appellant moved into Miss M's house. The complainant in this case, Z, is Miss M's eldest daughter who was born on 14 April 1987.
6. Z asserts that the appellant raped her on a large number of occasions between 1999 and 2003. At about the age of 16 or 17, Z moved out of the family home. She alleges one incident of rape after that time. This is said to have occurred when Z was aged 20 and living with a boyfriend. Z asserts that the appellant raped her when he came to their flat in order to repair a washing machine.
7. The marriage between the appellant and Miss M broke down in April 2008 and the appellant moved out of the family home. Thereafter, he went to live with a much younger woman, who has the same name as the victim and who in the course of submissions today has been referred to as "Z2".
8. On 17 May 2009 a barbecue was held at Z's grandparents' house to celebrate her grandfather's 70th birthday. Z attended with her partner. Following a family altercation, Z disclosed the alleged rapes to her grandmother, Mrs Pamela M.
9. The discussion with Mrs Pamela M led to Z being interviewed by the police on 29 May 2009. There were two separate interviews on that day and they were recorded on DVD. In the course of the interview, Z gave details of numerous occasions when she asserted that the appellant had raped her.
10. In July 2009 the appellant was interviewed by the police on two occasions. He strongly denied that he had ever raped the appellant or otherwise behaved inappropriately towards her. Those denials were not accepted by the Crown Prosecution Service. Accordingly, they commenced the present criminal proceedings.

Part 3. The Criminal Proceedings

11. The appellant was charged on an indictment containing six counts of rape. Count 1 alleged that the appellant had raped Z between 10 July 1999 (the date when the appellant had married Z's mother) and 13 April 2000 (the day before Z's 13th birthday). Count 2 alleged that the appellant had raped Z when she was aged 13. Count 3 contained an allegation of rape when Z was aged 14. Count 4 contained an allegation of rape when Z was aged 15. Count 5 contained an allegation of rape when Z was aged 16. These five counts were put forward as being essentially specimen counts, because Z's evidence was that there were a number of rapes when she was each of those ages.
12. Count 6 falls into a different category. This alleges a single incident of rape when Z was aged 20. That relates to the occasion when the appellant went to the flat in order to repair a washing machine.
13. The appellant pleaded not guilty to all six Counts. He stood trial on that indictment at the Ipswich Crown Court before HHJ Devaux and a jury in May of 2010. The prosecution called as witnesses the victim, Z; also her mother, Miss JM; her grandmother, Mrs Pamela M; and two younger men who had had relationships with Z more recently, and to whom Z had made disclosures about the appellant's conduct.
14. When Z gave evidence she was cross-examined, perfectly properly, by Mr Durr, defence counsel, about previous statements which she had made in order to point out any inconsistencies between those statements and her current evidence. Two of the alleged inconsistent statements which were dealt with in cross-examination, were made in 2001. It was elicited in cross-examination that in 2001 a police officer and a social worker had attended the family home and had interviewed Z. She had said in answer to those persons that the appellant had not interfered with her in any way. It was also established in cross-examination that a little while after that the grandmother of Z had asked the same question of Z, and Z had replied to her grandmother that the appellant had not touched her inappropriately at all.
15. The jury were curious as to why a police officer and a representative of Social Services had visited the house in 2001 to make those enquiries. In order to deal with the jury's question, defence counsel drafted an admission and invited the prosecution to make such an admission, which the prosecution duly did. The admission reads as follows:

"On 17^th October 2001 and 18^th October 2001 the police (D.C. 228 Anita Powers) and Social Services (Sue Castle) attended [the address] in relation to an allegation being made by the defendant's natural daughter SH (D.O.B: 30/05/88). On 17^th October 2001 they spoke to JM (then H) and Frank H. On 18^th October 2001 they spoke to [Z]. That investigation was concluded without Frank H being arrested, interviewed and/or prosecuted".

16. As I say, that admission was drawn up following a question, indeed, to be more precise, two questions, which had been asked by the jury in the form of jury notes.
17. Defence counsel, Mr Jude Durr, had wished to cross-examine Z more extensively about the events of 2001, but was not permitted to do so by reason of a ruling given by the judge. We shall come back to that ruling later in this judgment.
18. Returning to the narrative of the trial, there were two witnesses for the defence. The first witness was the defendant himself, who denied all the allegations, as he had done in his earlier police interviews. The second defence witness was a man called DD, generally referred to as "Big D", who gave evidence that he had been at the appellant's house frequently on Tuesday evenings. Those were the occasions when Miss M was out and rapes were said to have occurred. The evidence of DD was that he had not seen anything inappropriate at the house.
19. The judge summed the case up on 27 and 28 May 2010. The jury retired on Tuesday 1 June. The jury returned a verdict convicting the appellant on all Counts by a majority of 10 to 2.
20. The appellant was aggrieved by his conviction and, in particular, by the judge's ruling which limited defence counsel's cross-examination in relation to the events of 2001. Accordingly, the appellant has appealed against conviction to the Court of Appeal.

Part 4. The Appeal to the Court of Appeal

21. The appellant has appealed to this court on two grounds, one of which is no longer pursued.
22. The ground of appeal which is still pursued relates to the events of 2001. The background to this incident is as follows. In July and August 2001 the appellant's natural daughter, SH, came to stay with the family. After S had returned to her mother in Shropshire she made allegations of inappropriate sexual conduct by the appellant. These allegations were investigated by the police and Social Services department, who questioned each of JM's daughters individually. Each of the daughters denied that the appellant had exposed himself to them or that he had otherwise behaved indecently.
23. When Z was interviewed by the police in 2009, she was asked about the 2001 investigation. Those questions about the 2001 investigation were the subject matter of the second interview on 29 May 2009. Z said that she was questioned in the front room by people from the police and Social Services. They asked if the appellant had interfered with her and she replied "no". She said, in May 2009, that she gave the answer "no" in 2001 because of threats which had been made to her by the appellant. She said the appellant had threatened her that if she reported what he had done, he would go to prison, and when he came out he would kill her. Z said that she was frightened by these threats.
24. The existence of this evidence gave rise to some delicate decisions for defence counsel. On the one hand, the fact that Z had been interviewed in 2001 and had denied any misconduct by the appellant may be helpful to the defence. On the other hand, the fact that the appellant was being investigated in 2001 in respect of allegations made by S was unhelpful to the defence. It would not be practicable for defence counsel to elicit the favourable statements made by Z in 2001, without also placing before the jury some context in which those statements came to be made, namely, an investigation into alleged misconduct by the appellant.
25. It can be seen from the transcript that these issues were discussed at an early stage of the trial, when rulings were sought from the judge on a number of matters. It can also be seen from the transcript that prosecuting counsel made it plain that he was content not to lead any evidence concerning S, and not to put the second interview of 29 May in evidence. Of course, prosecuting counsel recognised the possibility that such evidence would become admissible in due course because of questions asked during cross-examination, but the prosecution were content to present their case without putting forward any of that material.
26. Defence counsel, understandably, took the view that he wished to put in evidence the inconsistent statements made by the appellant to the police and Social Services and, following that investigation, to Z's grandmother. Mr Durr, for the defendant, informed the judge that he proposed to question Z about the details of S's allegations, in order to attack her credibility and to demonstrate that those allegations were absurd. Also, defence counsel hoped in that way to lessen the prejudice which may be caused to the defendant by revealing to the jury that there was an investigation in 2001.
27. The judge allowed defence counsel to cross-examine Z about her previous inconsistent statements. He allowed defence counsel to cross-examine Z about what she had said to the police officer and the Social Services representative in 2001 when she had denied that there was any sexual misconduct on the appellant's behalf. Likewise, he allowed defence counsel to cross-examine Z about what she had said to her grandmother shortly after the investigation. On that occasion too it will be recalled that Z had denied any inappropriate sexual conduct by the appellant. However, the judge refused to allow what he described as satellite litigation, namely, any wider investigation of S's allegations during the cross-examination of Z.
28. The trial proceeded in the manner which we have referred to and, as previously mentioned, the appellant was convicted. The appellant's counsel now argues that the conviction is unsafe because the judge ought to have allowed a much more extensive cross-examination of Z in relation to the events of 2001.
29. In developing his appeal this morning, the appellant's counsel has focused his attention on a report dated 29 October 2001 by DC Richard Tranter concerning the investigation of SH's allegations. Two passages in particular in this document have been focused upon this morning, and for ease of reference they are referred to as passage A and passage B. Passage A reads as follows:

"Talking freely, [Z] told me many things that she was unhappy with concerning S but nothing about her parents. She told me:

1) SH was at the beach and went up to a 16 year old stranger who was drunk and started touching his bum, she was later snogging him. [Z] didn't know his name.

2) [Z] saw S simulating sex with one of her younger sisters at home, [Z] was laying on top moving her bottom up and down.

3) [Z] saw S trying to have sex with the family dog, S was naked on the floor with the dog stood above and astride her, [Z] says she took the dog away to a different room, S told her not to tell anyone.

4) S asked [Z] and her younger siblings if they knew what a blow job was? When the younger ones said they didn't know, S went on to describe what it was".

Passage B reads as follows:

"Because of the allegations made by S I specifically asked [Z] about the incident when her knickers were removed. [Z] told me that it was S who had removed her knickers and not dad. He was in the bathroom at the time. S later returned the knickers back to [Z]."

These are the passages which the judge did not allow defence counsel to explore in cross-examination.

30. In his submissions this morning, Mr Durr recognised that if he had put passage A to Z in cross-examination, she might have agreed that she had indeed said these things to the police officer. Alternatively, she might have denied saying these things to the police officer. Mr Durr submits that if Z had confirmed saying these things to the police officer, then her credibility may be damaged in the eyes of the jury. The jury may well think that those assertions could not be true and if she was lying on that occasion, she may be lying on the present occasion as well. Alternatively, the putting of passage A to Z may enable counsel cross-examining to say that she realised how important telling the truth was on that occasion in 2001. Therefore, she must have been telling the truth when she said to the police officer that the appellant had not interfered with her. On the other hand, said counsel, it may be that Z would have denied in cross-examination having said this to the police officer in 2001. In that event, it may be that the jury would reflect, well this is a young woman who is not telling the truth somewhere, therefore we regard her evidence with a greater degree of scepticism. Mr Durr very fairly conceded that he did not know where the cross-examination might lead and obviously he might get unhelpful answers, along the lines that the appellant had instructed Z to deny any misconduct on his part and so forth.
31. In our view, the judge was quite right not to allow defence counsel to put passage A to Z in cross-examination and follow it up in the manner which Mr Durr proposed. The judge said that this would lead to satellite litigation. Strictly speaking, this would only have led to satellite litigation if S had then been called as a witness and the veracity of S's allegations had been explored. Clearly, such satellite litigation could not be allowed and the judge was right to indicate that it would not be allowed. However, on the basis that there would not be any such satellite litigation or any investigation of the allegations of S, then the proposed line of cross-examination of Z would merely be a fishing expedition. It would involve questioning Z about S's allegations and exploring issues which were nothing to do with the matter before the jury. We do not believe that the jury would have gained any substantial assistance in either direction from an exploration of passage A.
32. We turn now to passage B. Mr Durr submits that, broadly speaking, similar benefits would be derived from cross-examining Z about passage B. Furthermore, Mr Durr makes the point that in passage B, Z is positively asserting that one allegation made by S was untrue and that would be of benefit to the appellant in this case. Again, we take the view that cross-examination about passage B would be too far removed from the issues in the present case to assist the jury. It would be in the nature of a fishing expedition and the judge should not allow, in a case such as this, the cross-examination of witnesses to meander off down paths which are unrelated to the issues for decision.
33. Mr Durr points out that the jury would be concerned to hear about the investigation of 2001 and would wonder why it was taking place. For our part, we can understand that concern which Mr Durr felt. On the other hand, he was able to deal with it by the admission which was put before the jury and which made it plain that no allegations were pursued by the police against the appellant. If the appellant was going to get the benefit of evidence about Z's earlier inconsistent statements, then the price to be paid was that the jury would know about the 2001 investigation. We do not think it would have been right for the judge to have allowed any more extensive exploration of the underlying allegations made by S, which allegations were not pursued against the appellant.
34. Mr Durr urges upon us that there was some additional prejudice against the appellant arising from the fact that after splitting from Z's mother he went to live with a much younger woman, namely Z2, who had been a friend of one of Z's sisters. This is evidence which need not have gone before the jury at all. However, defence counsel allowed this evidence to go before the jury because it was part of the defence case that Z was aggrieved by the appellant leaving her mother for a much younger woman, and that is why it was that Z was making these allegations against the appellant. That was part of the defence case. As Mr Durr put it, it had a sting in the tail. One can see the argument which assisted the defence. One can also see that the jury may look askance at a man in his 40s who was setting up home with a very much younger woman.
35. This was one of the difficulties which defence counsel had to deal with in the conduct of the defence, but the existence of that difficulty is in no way relevant to the judge's decision not to allow any fuller exploration of the events of 2001.
36. Let us now draw the threads together. We have studied with care the judge's ruling limiting the cross-examination by defence counsel of the appellant in relation to events in 2001. The judge allowed cross-examination on matters which were pertinent to the trial. He disallowed cross-examination on matters which were essentially a fishing expedition. In the judgment of this court, that ruling was sound and was correct in law.
37. Accordingly, we reject the one surviving ground of appeal and this appeal against conviction is dismissed.