England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Inner London Crown Court
HHJ Davis
T20097347

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/11/2012

Lord Justice Treacy :

1. On 16^th April 2010 in the Crown Court at Inner London this Appellant was convicted of two counts of rape (Counts 1 and 2). There was a further count of rape (Count 3) upon which the jury could not reach a verdict, and which was ordered to remain on the file on the usual terms.
2. On 13^th September 2010 the Appellant was sentenced to thirteen years imprisonment with a direction that time spent in custody or on curfew should count towards sentence. Ancillary orders were made.
3. The Appellant appeals against his conviction with the leave of the single judge. The Appellant and the complainant (SC) were known to each other and were part of a circle of people in an area of London whose socialising involved the use of alcohol and drugs.
4. On 20^th April 2009 the complainant travelled with the Appellant by mini cab to the Appellant's flat. Over the course of that night she was alleged to have been raped by the Appellant, orally (Count 1), vaginally (Count 2), and anally (Count 3). All offences were alleged to have taken place at the flat. Counts 1 and 2 were specimen counts as the complainant alleged that there were several incidents of oral and vaginal rape. Count 3, the anal rape, was alleged to have occurred on a single occasion.
5. When the complainant was medically examined on 22nd and 23^rd April, no visible injuries to her vagina or anus were noted. However, she was complaining of tenderness in those areas. Swabs were taken, but there was no finding of semen or other DNA evidence. When examined the complainant was noted to have a number of bruises to her face, arms, legs and body.
6. The complainant had made complaint to her boyfriend, LD, on the morning of 21^st April and had later developed the detail of her account when she spoke to police.
7. The Crown's case was that the complainant had been raped repeatedly over the night of 20^th/21^st April 2009. The complainant had been subjected to some violence and had told the Appellant to desist, but he had ignored her. Her complaint shortly afterwards and the evidence of her physical injuries were relied on as being consistent with her account.
8. The defence case was that the pair had engaged in consensual oral sex. The Appellant denied having vaginal or anal intercourse with the complainant. He said that the complainant had taken the lead in such sexual activity as did occur. He had resisted sexual intercourse with the complainant since he did not have any condoms. He said that the complainant was a prostitute who had finished her relationship with LD and wanted him to become her pimp.
9. The Appellant relied on evidence from a mini cab driver, AZ, in support of his case. AZ gave evidence that the complainant had offered to have sexual intercourse with him for £20.00 on route to the Appellant's flat, and also that she had offered him oral sex.
10. Further to the complainant's evidence the Crown called LD, who gave evidence of the complaint. In addition, evidence from three doctors was read. Dr Brookes found no vulval or vaginal injuries, no external rectal injuries and no fresh blood on an internal examination of the complainant's rectum. She had asserted that she had bled in her anal area after being raped in that manner. Dr Lawrence conducted a general physical examination of the complainant. She found multiple bruises and abrasions over the complainant's face, arms, legs and body which she said could be consistent with a history of physical violence. It was the Appellant's case that LD must have inflicted those injuries.
11. Dr Penny Mostyn also examined the complainant. She said that the absence of injuries in the genital area neither confirmed nor refuted the allegation of assault by penetration.
12. When the Appellant was interviewed after arrest he gave an account generally consistent with his evidence. In the course of the interviews, however, he said that he had smoked crack cocaine with the complainant on the night in question.
13. The Appellant gave evidence stating that the complainant had initiated and performed oral sex, but saying that there was no other sexual activity despite the complainant repeatedly asking him to have sexual intercourse with her. Indeed when the pair had been in bed together she had kept trying to force his penis into her vagina, but he resisted. The only sexual contact was oral sexual intercourse. The Appellant denied any violence towards the complainant.
14. The mini cab driver who had taken the pair to the Appellant's flat gave evidence. He described them talking in a sexually explicit way on the journey, as if they were "going to do it"; and he stated that, when en route the Appellant left the car for a few minutes, the complainant had offered him sex. As will be explained later, the Appellant was recalled to give evidence and he criticised aspects of AZ's evidence and suggested that he had not been the mini cab driver on the night in question.

Ground 1

15. This ground is concerned with the reference by an expert medical practitioner, Dr Penny Mostyn, to an article by Bowyer and Dalton in the British Journal of Obstetrics and Gynaecology: May 1997, Volume 104, pages 617 to 620.
16. The submission is that the article should have been excluded as being unfair, misleading, and highly prejudicial. Alternatively, if the material was admissible, it should have been the subject of rigorous cross examination.
17. Notwithstanding her account of violent rapes by the Appellant, the victim did not have any genital injuries when examined afterwards, although she did have a number of other physical injuries consistent with her account.
18. The prosecution read unchallenged evidence from Dr Mostyn which set out her expert qualifications and described finding no visible injury in the genital area apart from tenderness in the vestibule. Similarly there was tenderness in the perianal area, but no visible injury, and no blood or source of bleeding was seen.
19. Dr Mostyn's conclusions towards the end of a five page statement read as follows:

"I have based my opinion on my clinical experience, the information given at the time of examination and [the] paper listed in Appendix 1. My genital findings do not confirm or deny the allegation of assault by penetration. L Bowyer and M Dalton analysed the case records of 83 women who reported that they had been raped and who were examined by the Northumbrian Police Doctors Scheme. The authors found that a minority of women had genital injuries (27% or 22/83). Tenderness is frequently caused by trauma but is not a specific sign of injury… I do not know what the significance is of the areas of tenderness described…but they could be explained by penetration of the vagina and anus by a penis."

20. The article did not go before the jury. The only reference to it was in the sentences read above. Counsel submits that the reference to the article was inadmissible and that it should have been excluded. The judge's failure to exclude it renders the verdicts unsafe.
21. It was argued that the article was misleading and that within the paper there were some signs of confusion between reported rape and actual rape.
22. The authors' conclusions were that the issue of genital injury and its association with rape is contentious, and make clear that their study reports an analysis of women who have alleged rape. They go on to say that the association of genital injury and rape is questionable, with the incidence of genital injury varying between 10 and 87% according to a number of studies.
23. It was submitted that the jury may well have understood the article as concluding that the percentages related to rape victims as opposed to those who reported rapes.
24. It was also submitted that the article was unfairly left before the jury. Alternatively, that it should have been challenged so as to bring out the variation in percentages in cases where alleged rape attacks result in genital injury, the difference between reporting a rape and a rape having taken place, and other matters which would have helped to set the report in context.
25. In order to assess this criticism it is necessary to analyse what actually happened at the trial. Firstly, Dr Mostyn's evidence was in short compass to the effect that the absence of genital findings did not confirm or deny the allegation of assault by penetration.
26. The paper was not read to the jury. All that was put before them was the passage already cited. Those sentences made clear that the findings related to women who reported that they had been raped. No other witness gave evidence on this topic.
27. The Appellant, in giving evidence, denied that he had had vaginal or anal intercourse with the alleged victim.
28. In her closing address for the Crown, counsel made no reference at all to Dr Mostyn's evidence. In defence counsel's closing speech she said:

"First of all there are no visible genital injuries at all. Now, we know from the evidence that we have had read that that may not matter, because in many cases of rape there are no genital injuries. But at the same time, it is significant because it certainly does not support the Crown."

29. A little later on she referred to the Appellant's account denying vaginal or anal intercourse, and mentioned the medical evidence as a factor supportive of his case.
30. In summing up the judge referred briefly to Dr Mostyn, reporting her findings as "my genital findings do not confirm or deny the allegation of assault by penetration".
31. Just before he summed up, the judge received two notes from the jury. One related to this matter.
32. The jury's question was: "Medical evidence read by the prosecution mentioned research on rape victims that display injuries. Could we please be reminded of the research findings?" The judge dealt with the matter by having them write down verbatim the paragraph cited above starting with "my genital findings" and ending "(27% or 22/83)". Both judge and prosecuting counsel at this stage accurately quoted to the jury that this related to women who reported they had been raped.
33. The jury's question had spoken in terms of victims of rape, but there were two references in the answer to the question to reporting of rape which we think was sufficient to clarify the matter. The judge also checked that the jury had a clear note of what he had asked them to write down. Although with hindsight it might have been wise if the judge had said something further to correct the jury's loose use of language in their question, we do not think that in the circumstances criticism of his failure to do this is justified. The fact that the matter was written down by way of dictation carried sufficient emphasis and what the jury had written served as a tangible reminder of the correct position available to them in the jury room.
34. Whilst Dr Mostyn referred to the paper as showing support for her conclusion that the absence of injury neither confirmed nor refuted the allegation of assault by penetration, the jury also knew that she was a very experienced doctor who had carried out over 20,000 female genital examinations, including more than 300 in the context of complaints of sexual assault. She had since 2002 acted as a Sexual Offences Examiner and had been on a number of courses.
35. Dr Mostyn was therefore in our view fully entitled to put forward the opinion which she gave based on her extensive experience, and supported by reference to the paper. That rape does not always involve genital injury is, we venture to suggest a well known proposition. There is reference to it in the current Crown Court Bench Book as one of a number of subjects for stereotyping which could lead a jury to approach a complainant's evidence with unwarranted scepticism. Much, of course, will depend on the individual circumstances of any case.
36. The issue for us is whether the brief mention of the report at all with the percentage of injury found in reported cases of rape was prejudicially unfair to the Appellant. We do not consider that it was. The reference itself was limited. It was not the sole basis of Dr Mostyn's opinion. There has been no expert evidence put before us on this appeal to call that report into question.
37. Although counsel has made criticisms of the report, its conclusions distinguish between the reporting of rape and the proof of rape. They are in these terms:

"Gynaecologists will usually find no genital injuries when they examine women reporting that they have been raped, but this should not influence their opinion in their legal statement regarding the allegation, nor their treatment of the woman. The absence of genital injury should not be used as pivotal evidence by the jury, police or Crown Prosecution Service."

38. The report also stated that although a minority of women had genital injuries, the majority had some form of physical injury, although most of those were minor. This piece of evidence was not put before the jury.
39. We are not persuaded that the judge should not have permitted the jury to hear the brief reference to this report on the grounds of inherent unreliability or lack of expertise. It was a report in a respected journal by appropriately qualified experts which will no doubt have been subject to proper peer review procedures.
40. Had the point been taken, we consider that the judge would reasonably have allowed reference to the paper to be made. Had cross examination taken place, it would not, in our judgment, have materially affected the position. The proposition would still have emerged that injury is not necessarily concomitant with rape as is apparent from other studies cited in the report. There might have been some cross examination based on the percentage of cases where injury was detected, but we doubt that the overall proposition would have been overturned.
41. Moreover, we consider that on a proper reading of the paper, any challenge to its status as evidence worthy of consideration would not have succeeded.
42. As to the submission that Dr Mostyn should have been cross examined, this was not really pressed in oral argument. However, we have considered the point. Our conclusion is that counsel's decision not to seek to challenge Dr Mostyn's evidence was a perfectly reasonable one. The proposition for which Dr Mostyn was contending is in no way surprising and the defence were proposing to make a positive point based on the absence of injury as they were entitled to do. There was at least the risk that by exploring the issue in cross-examination the defence might weaken its position.
43. As already stated, it would with hindsight, have been preferable for the judge to have underlined the difference between reported rape and rapes. But we do not think that that was a material failure. The Crown had made no capital out of Dr Mostyn's evidence, nor had the judge in summing up.
44. The defence had drawn some support from the absence of injury, but the matter had not featured centrally in the case at all. In the circumstances we are not persuaded that this ground provides any tenable basis in support of the appeal.

Ground 2

45. Ground 2 criticises the judge's handling of Counts 1 and 2 which were specimen counts. Mr Fisher QC did not submit that it was inappropriate to proceed on specimen counts. There were three counts on the indictment. Count 1 alleged oral rape. Count 2 alleged vaginal rape. Count 3 alleged an anal rape. The jury could not agree on Count 3. Only a single occasion of anal rape was alleged.
46. Counts 1 and 2 were specimen counts because the victim alleged that she had been orally and vaginally raped on a number of occasions during the night she spent in the Appellant's company. Allegations regarding each type of act were broadly the same in their detail and description of what had occurred. However, it is apparent that as the night wore on, one or both parties took crack cocaine.
47. In summing up the judge said this, having given the usual direction as to the need for separate verdicts:

"Can I then deal with this as well, because you will remember Miss Lowe dealt with this in her opening speech: Counts 1 and 2 are specimen counts you will remember. The prosecution allege that the Defendant also committed numerous other offences of the same kind during the time that he and SC were in the flat in relation to Counts 1 and 2. Instead of loading up the indictment with counts that charge those other offences, they, the prosecution, have selected one as an example in relation to Count 1 and one as an example in relation to Count 2, as they are entitled to do. However, you may convict the Defendant only if you are sure that he committed the particular offence charged in that particular account, whether or not you are sure that he also committed other such offences."

48. The Appellant argues that this was a misdirection and that the judge should specifically have directed the jury that they could not convict upon any specimen count unless they were all agreed as to which offending incident they were sure the Appellant committed.
49. His failure so to direct them meant that the jury might have been divided as to which course of conduct they were sure the Defendant committed. For example, they might have been divided as to whether her account in relation to matters later in the evening after admittedly taking crack cocaine and alcohol was accurate. Or, some jury members might have been sure that she had been raped vaginally or orally at some point, but not agreed as to precisely when.
50. So, relying on Brown [1984] 79 Cr App R 115, it was said that the judge's direction left it open to some members of the jury to convict on rape, being sure of an account of one incident; with others only being sure in relation to a different incident later on that night.
51. Brown, of course, is a case which is concerned with the situation which arises, where a count in the indictment contains a number of different ingredients, representing alternative ways in which an offence may be committed.
52. In those circumstances the judge must direct the jury that where a number of matters are specified in the charge as together constituting an ingredient in the offence, and any one of them was capable of doing so, any individual matter must be proved to the satisfaction of the whole jury.
53. It would not, where an indictment alleges different types of activity, be sufficient for six members of the jury to find one activity proved and another six members to find a different activity proved.
54. However, care needs to be taken in analysing the relevant case law. As was observed in Keeton [1995] 2 Cr App R 241, at page 249G:

"…it is only in cases where truly alternative bases for a finding of guilt are being put forward by the Crown and where there is a risk that the jury might feel that it is permissible for some of them to be satisfied by one basis and others by another, that the Brown direction need be given. It is not appropriate to complicate what are essentially straightforward cases with a Brown direction."

55. It seems to us to be important to analyse what the issues were in this case. In relation to the allegation of oral rape, it was agreed the activity took place. The issue was whether SC consented or not. In relation to vaginal rape which was alleged to have occurred on an undefined number of occasions during the night, the issue was whether there had been any vaginal intercourse.
56. Defence counsel summed it up in this way in her closing speech:

"It is about quite precisely what happened. First of all, in terms of the sexual acts that took place or did not take place. Secondly, in terms of whether there was or was not consent for that. You may think that those are really the two questions. What happened? Having decided what happened, was that or was that not with consent?"

57. We observe that the allegations covered a single night, the same parties, the same place, and with the same defence being put forward in relation to the activity within each count. The Crown's allegation was that the victim was not consenting to any sexual activity.
58. This was not a case where the counts specified a number of different ingredients. Count 1 would be proved by showing oral sex without the victim's consent and without reasonable belief on the part of the Appellant. Count 2 would be same with the substitution of "vaginal" for "oral".
59. We have in mind Lord Ackner's words in More [1988] 86 Cr App R 234 at 252:

"Clearly each ingredient of an offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). It is equally essential that the jury be directed in a manner which is easily comprehensible and devoid of unnecessary complications. Whether or not a particular direction adequately expresses to the jury the obligation of the prosecution to prove to the jury's satisfaction each ingredient of the offence must depend essentially on the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence."

60. We are wholly unpersuaded in the circumstances of this case that a Brown type direction was necessary. There was no disparity as to time, place, particulars or nature of the act required to prove a count. The separate allegations of oral and vaginal rape stood or fell together within each count. At no stage was the case conducted on the basis that some jurors might be satisfied in relation to one episode, with some being satisfied in relation to another. That was not the way in which the case proceeded below. Nor was there any question from the jury raising this issue.
61. In reality there was no danger of misapprehension which required the judge to address the issue. We consider that the judge's direction was in the circumstances sufficient.

Ground 3

62. This ground complains of the judge's failure to give a Lucas direction in the summing up. In the course of his interviews with the police, the Appellant said that he, as well as SC, had smoked crack cocaine on the night in question. In the witness box he maintained that he had not smoked crack, but was still saying that the complainant had.
63. He explained the apparent contradiction with his account in interview by saying that he had felt under immense pressure in interview and had spoken in the heat of the moment when the rape allegations (which he was denying) were more important than whether or not he had smoked crack. The Appellant repeated this explanation at some length and on more than one occasion.
64. The Appellant chose to say that he had not smoked crack having received a direction from the judge about his right not to self-incriminate in relation to possession with intent to supply (as opposed to any other offence).
65. When Miss Lowe for the Crown cross-examined, she put questions to the Appellant directed to the question of whether or not he had smoked crack that night. The purpose of her enquiry was to understand whether it was the Appellant's case that he was or was not under the influence of crack. It was also relevant to his evidence that the complainant alone had smoked crack cocaine while they were together, and thus, by inference, to his assertion that she was thus a less reliable witness.
66. At Mr Fisher's invitation we have examined very carefully the relevant passage of evidence. What counsel did not do was to put to the Appellant that he had lied and thus was guilty of the offences charged. She was investigating a broader question as to his state on the night in question and as to whether he was trying to mislead the jury into thinking that the use of crack was the complainant's idea alone, and thus that she was "up to no good".
67. Prior to speeches there was a discussion between Bar and Bench about jury directions. The judge indicated that he was not going to give a Lucas direction but invited comments. Neither counsel sought to persuade him to do so. That is perhaps a useful test of the true place of this issue in the trial.
68. When the Crown made its closing submissions to the jury, counsel made no discrete allegation of a lie in relation to the crack cocaine. She was submitting that the Appellant's demeanour and attitude in the witness box had been inconsistent, evasive, and unreliable, and that his evidence generally was incredible with words "tumbling from his mouth".
69. We highlight one passage from the cross examination by way of illustration:

"Question: Were you under the influence of crack cocaine on 21^st April 2009 Mr Williams yes or no?

Answer: Alright I see where you're going now, I imagine, but as I said, no, I think I'll stick by my first answer in relation to that.

Question: You think you'll stick by your first answer. Do you mean the first answer you gave in interview or from the witness box?

Answer: I'd say to take your pick on that one."

70. Having considered the transcripts of cross-examination and counsel's closing speech, we conclude that this exchange is representative of a wider approach on the part of the Appellant giving evidence, and that the Crown was entitled to focus on a general lack of credibility of which this was an example.
71. When defence counsel addressed the jury she briefly dealt with the question of whether or not the Appellant had consumed crack as a broad issue to be considered in the context of substances taken by both parties and as a factor in looking at their reliability as witnesses.
72. Therefore, consistent with both counsels' stance in the discussion with the judge, neither party had put forward the question of consumption of crack cocaine as amounting to a lie, which would be supportive or indicative of guilt.
73. Although the Crown was challenging the whole of the Appellant's account as untrue, there was no particular focus on the crack cocaine evidence as a specific lie indicating guilt.
74. When the judge came to sum up, he referred to the question of the Appellant's smoking crack cocaine and said:

"The Crown rely to a certain extent on his change of account. The defence invite you to ignore it and to act upon the Defendant's evidence about his reasons for saying what he did, rather than telling a deliberate and significant lie. That is a matter entirely in your province."

75. The judge set out the Appellant's explanation for the contradiction in saying that he had felt under pressure in interview and had spoken in the heat of the moment rather than accurately. A few pages later the judge repeated the Appellant's explanation in a neutral recitation of his evidence.
76. Mr Fisher argues that the judge should have given a full Lucas direction, telling the jury that they had to be sure that a lie had been told in this respect and directing them that the mere fact of a lie is not itself evidence of guilt, and that only if they were sure that the Defendant did not lie for an innocent reason could they treat the lie as supporting the prosecution case.
77. In addition, Mr Fisher submits that the judge's use of the phrase "rather than telling a deliberate and significant lie" represents the judge indicating to the jury that they could regard what the Defendant had said about this matter as a lie supportive of guilt.
78. As to this latter submission, we cannot accept the construction put on the passage by Mr Fisher. The jury will have seen and heard the Crown's approach, which was not to treat this matter as a specific lie, but rather to take a broader view. They had heard defence counsel make submissions which were not inconsistent with that approach.
79. In the passage complained of, the judge reflects the Crown's position by the use of the phrase "to a certain extent". He then put forward the defence explanation concerning the evidence, and in using the phrase he did, was not inviting the jury to conclude that a lie had been told. What he was doing was providing a description of what the defence were saying the Defendant's account did not amount to as opposed to inviting the jury to treat it as a lie.
80. To have done otherwise would have run contrary to the way in which the case had been conducted, and contrary to the view expressed by the judge prior to summing up.
81. It seems to us to be important to view the matter in the context of the case as a whole. The case had never been advanced to the jury on the basis that any lie about the use of crack cocaine would provide evidence of guilt. The disconnection between the use of crack and guilt was in fact pinpointed by the Appellant in his evidence when he remarked more than once that he did not see what crack had to do with the complainant being raped.
82. In Burge and Pegg [1996] 1 Cr App R 163 this court, discussing Lucas, stated that where the Crown seeks to show that something said was a lie and to rely on that lie as evidence of guilt in relation to a charge, a Lucas direction would usually be required. Such a direction would also usually be required even if the Crown did not adopt that approach, in cases where the judge reasonably envisaged that there was a real danger that the jury may do so. Mr Fisher QC would also extrapolate that this court should take a view as to whether there was a real danger that the jury might do so.
83. In Burge and Pegg, however, the court also said that a Lucas direction is not required in every case, even if the jury may conclude that a Defendant has lied in relation to some matters. The warning is only needed if they might regard that conclusion as probative of guilt. How far a direction is necessary will depend on the circumstances.
84. In Keeton (supra) the question of a Lucas direction was considered. At page 245E to 246B the court said:

"In the present case the Crown had not sought to rely upon the admitted lies of Geoffrey Keeton in interview as evidence of his guilt. It was, however, a case in which the jury might wonder why he had lied and draw an adverse inference even though the crown had not been making the point, except as a point on credit. However, the Defendant had specifically covered the point in his evidence and had given an explanation of why he had not initially told the truth. The judge in his summing up expressly covered this point and reminded the jury of his evidence and the explanation he gave. When this point was raised at a later stage with the judge, he pointed out to counsel for Geoffrey Keeton that the way in which he had summed up to the jury on this point was favourable to him, since to have said any more would have merely served to undermine the explanation which Keeton had given, and invite the jury to draw from it an inference of guilt when no one had suggested to them that they should…

Although this was a case which involved a question of identification, it was not a case like Goodway where the significance of the lies told by the Defendant was central to the difficult issue of identification with which that case was concerned. Here the question of lies was at best peripheral. Further the jury had heard the explanation which the Defendant had given. It was before the jury that there was an explanation for what the Defendant had said other than a consciousness of guilt. Any elaboration of the issue would have given it undue prominence and have been adverse to Geoffrey Keeton. There was no misdirection, nor was there anything unfair in the way the judge dealt with the matter."

85. We find those observations in not dissimilar circumstances to be of assistance in considering whether a full Lucas direction was necessary. We have also considered the case of Middleton [2001] Crim.L.R 251 where the court (emphasising that it was not purporting to re-formulate principle or to undermine existing authority) said that the purpose of a Lucas direction is to guard against the forbidden line of reasoning that the telling of lies equals guilt. It follows that where there is no risk that the jury might follow such a line of reasoning, there is no need for such a direction. In deciding whether such a direction is appropriate in any given case it will usually be more useful to analyse the question in the context of the individual case.
86. Having considered the way in which this case was conducted, we do not consider that there was a danger that the jury would assume that if the Appellant had lied about smoking crack, he must be guilty of rape. This was not, therefore, a situation in which it was necessary for the judge to give a full Lucas direction. Indeed to have done so might have had the effect of advancing an aspect of the case against the Appellant which had not been previously put forward.
87. The judge had clearly and in detail put forward on two occasions the Defendant's explanation for the apparent contradiction in his evidence, the parties had not treated the matter as a lie going to guilt, and we do not consider that, properly understood, what the judge said to the jury was an invitation for them to approach the matter otherwise. In all these circumstances we are satisfied that there was no misdirection. Accordingly, despite Mr Fisher's careful argument on the point, it must fail.

Ground 4

88. The Appellant gave evidence that he had asked the cab driver who had taken the pair to his home to buy condoms for him. His case was also that during the night he had tried to make a number of calls to the cab driver to see where he was as he had not brought condoms. Williams' mobile phone was seized on arrest, but subsequently lost.
89. The Crown did not attempt to obtain mobile phone records. It appears that defence trial counsel had advised that the defence solicitors should obtain them from the service provider, but that appears not to have been done. Criticism is therefore made of the Appellant's then solicitors. Their failure, it is said, deprived him of an opportunity to support his assertion that he had called the cab driver during the night and thus by inference that he had been pursuing his interest in obtaining condoms for consensual sexual intercourse, his evidence being that he would not have unprotected sex.
90. It seems that the defence solicitors did not contact the service provider. One email we have seen suggests a belief that the relevant mobile phone company would not release them to anyone other than the police.
91. This ground was described as a "makeweight" by the single judge. We observe that the cab driver was called to give evidence and said nothing about any request for condoms from the Appellant at any point of the evening, notwithstanding a leading question being put to him.
92. As the witness left court there was an outburst by the Appellant in front of the jury. He alleged that the taxi driver who came to court was not the taxi driver he had been involved with that night.
93. Privilege having been waived, it appears that the Appellant was fully aware that the taxi driver was to be called by the defence, although he had said nothing in his witness statement about the question of condoms. The Appellant told his counsel that the driver would give such evidence.
94. After the Appellant's outburst in front of the jury, there was a conference with counsel. The papers show that counsel considered with the Appellant whether there should be an application to discharge the jury. The Appellant declined this option and a successful application was made to the judge for the Appellant to be recalled to give evidence.
95. When he gave further evidence he repeated that AZ had not been the taxi driver on the night in question, and repeated his account about requesting the true taxi driver to buy condoms for him and having followed that up with phone calls during the night.
96. It seems to us therefore that the Appellant had chosen to go ahead with the trial notwithstanding the taxi driver's failure to give the evidence the Appellant hoped for. This was at a time when he must have known there were no phone records available. It lies ill in his mouth to raise this matter now. In any event, even if records had been obtained and shown contact between the Appellant and a cab driver during the night, they would not have provided evidence as to what it was that had been discussed, if indeed there was any discussion.
97. Indeed by looking at the Appellant's interviews and proof of evidence, it is far from clear that the Appellant was actually able to speak to the cab driver during the night as opposed to making calls attempting to contact him.
98. There is also a live issue as to whether or not the Appellant's previous solicitors had been provided with sufficient information for them to make an enquiry of any mobile phone company, but, putting that to one side, we regard this a relatively peripheral issue which might or might not have advanced the case, but which has in any event to be viewed in the light of the Appellant's decision not to seek a discharge of the jury after the taxi driver's evidence.
99. Even assuming that such material had been obtained and that it did support the Appellant's case in this respect, it would not have assisted the jury directly in determining the central issues with which they were concerned, namely whether there had been consent to oral sex or whether there had been penetration in relation to vaginal sex. In passing, we note that the complainant in her ABE interview had accepted that the Appellant had whispered something in the cab driver's ear before they went to the flat and said she did not know if that was to do with condoms.
100. In the circumstances we do not think this ground advances the Appellant's case.

Ground 5

101. Finally the Appellant submits that defence counsel failed adequately to cross examine the complainant after she asserted in the course of cross examination that before they went to the Appellant's flat, the Appellant was trying to pimp her to the cab driver for £20.00, and that in his absence she had told the cab driver she was not a prostitute. True it was she had not mentioned those matters in her initial DVD interview, but counsel elicited more significant matters in cross-examination. We are unimpressed by this submission. It was a single point in an obviously extensive cross examination dealing with a lot of different matters. Moreover, in interview when it was put to her that she had spoken to the cab driver offering him sex for £20.00, the victim had vehemently denied that. She maintained that denial in evidence. But when AZ, the cab driver, was called for the defence, he said that she had indeed offered him sex whilst she was alone in the cab with him. We therefore fail to see that this point has any impact at all in comparison.

Conclusion

102. In all these circumstances we are not persuaded that there is any force in any of the grounds put before us and certainly nothing that could render these convictions unsafe. Accordingly, the appeal is dismissed, as we indicated at the end of the hearing on 20^th November.