England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12th December 2012

1. MR JUSTICE CRANSTON: This is an appeal against conviction by leave of the full court. On 23rd September 2010, in the Crown Court at Teesside, this 34-year-old appellant was convicted of five counts of rape (counts 1, 5, 6, 8 and 9 on the indictment) and one count of sexual assault (count 7). The jury acquitted him of two counts of rape, counts 3 and 4. The judge, His Honour Judge Walford, found that there was no case to answer in respect of count 2, rape.
2. On 28th January of the following year the judge sentenced the appellant for the rape offences to concurrent extended sentences comprising a custodial term of 15 years and an extension period of eight years. He was sentenced to two years' imprisonment concurrent for the sexual assault. He was also made subject to a Sexual Offences Prevention Order.
3. Evidence at the trial was heard over two weeks in September 2010, with the jury returning their verdicts in the third week. The appellant was represented by senior counsel, Mr Nicholas Atkinson QC, and junior counsel, Mr Ellwood.
4. There were four complainants. Three were former partners of the appellant, "N", "Y" and "J". Y and J were related, being niece and aunt respectively. N was involved in a relationship with the appellant between 2004 and 2006 and again between 2007 and 2008, Y in 2008 and J in 2009.
5. The prosecution case was that the appellant had raped these women over that six year period in the context of relationships which were possessive, violent and controlling. Drug use by both parties was a feature of the relationships.
6. The rape counts were sample counts. Counts 1 to 4 alleged rapes of N. In relation to counts 3 and 4, the prosecution called evidence from N's boyfriend. Counts 5 and 6 involved Y. Evidence was before the jury that the appellant and Y had received cautions for an incident of violence towards each other. Counts 8 and 9 concerned J. She had a conviction for assaulting the appellant. In her evidence at trial she stated that nothing had occurred which was not consensual and that the appellant had never either vaginally or anally raped her. That was in contradiction to what she told the police. She now said that she had made that up. She told the jury that she had visited the appellant in prison.
7. As we have indicated, count 7 was an accusation of sexual assault. That was of one of Y's friends, "A". Its basis was an incident when the appellant had indecently touched A when she was trying to assist Y, who had passed out after the appellant had given her alcohol and drugs.
8. The allegations only came to light when J was questioned about unrelated matters. The police had then contacted the other complainants.
9. When questioned in his police interview about the offences which J alleged, the appellant initially failed to mention N or Y until asked directly about them.
10. In her evidence, N denied any motive for making up false allegations. She had never complained previously, she said, because it was her word against the appellant's. She had made her statement only after the police arrived at her home.
11. Y said that she had not made a complaint earlier because she just wanted the appellant out of her life. She would never have telephoned the police because she had to continue to live on the estate. She denied wanting revenge or that she had sent a text to J saying "Revenge is sweet. I feel like dancing".
12. A said that she had not reported the incident, although she had told her husband, because at the time the appellant was still in a relationship with her friend Y.
13. The appellant gave evidence and denied the allegations. He could not explain why the complainants were fabricating their allegations, but speculated that the police may have contaminated the evidence of N and Y when approaching them after J had given her statement. He also suggested that there may have been a desire for revenge by some or all of the complainants because he had left them, and in Y's case there may have been a grudge due to an investigation concerning her daughter. In fact the appellant denied the specific incidents in Y's case which she had said had led to rape. He also said that N had deliberately caused trouble in the relationship he had with Y. In his evidence the appellant suggested that A was making up the allegation to support Y, her friend. The appellant told the jury that he only used violence in self-defence when provoked beyond endurance. He accepted, however, that the relationships had been volatile.
14. The appellant called his mother, who gave evidence of his contact with N, Y and J. One of the appellant's male friends gave evidence about two incidents, one with N, the other with Y. A woman gave evidence that she was an ex-lodger of Y and described what she said was Y's bizarre behaviour of violence and drug taking. Y disputed that the woman had ever stayed at her address.
15. In directing the jury, the judge began with the conventional direction about standard and burden of proof and then on treating each count separately, but he added that did not mean in total isolation. He said that as a matter of law the evidence in relation to one count was capable of supporting the prosecution case in relation to another count, and so in this case the evidence of one woman about the way the appellant treated her was capable of supporting the evidence of the other women about how he had behaved towards them. The judge continued on this issue of cross-admissibility as follows:

"The Prosecution case depends on whether you are sure, when it comes to important matters, that these four women have been truthful, accurate and reliable witnesses. When considering whether they have given truthful, accurate and reliable evidence, you should make an assessment of them individually, but also the Prosecution submit that you can and should take account of the similarities of the defendant's behaviour which each of them has described.

On the face of it, the fact that these women have made similar but otherwise unconnected complaints about the defendant's behaviour makes it more likely that each of these complainants is true. In that sense, the evidence of each of the complainants is capable of lending support to the others.

Obviously, the first issue you will need to resolve is whether the complaints made by these women really are independent of one another. If you came to the conclusion that witnesses have put their heads together and then each made similar allegations, you might also think that this would not be very convincing or reliable evidence."

16. The judge then said that, in advancing the appellant's case before the jury, Mr Atkinson QC had not suggested any conspiracy between the women, but that it was right that they should examine the evidence as to whether they really were independent. He recounted the evidence that N did not know Y, although they knew of each other's existence. N did not know J. Although Y and J were related, prior to 2010 in March their evidence was that either they had little contact or had not spoken for up to three years. The judge added:

"Accordingly, the Prosecution submit that there is no realistic possibility that any of the witnesses' evidence has been influenced or contaminated by anyone else, consciously or unconsciously, and that therefore, there had been no collusion nor any basis for thinking that the evidence is not independent, you can safely treat the evidence of each complainant as supportive of the others.

If you accept the Prosecution's submission as to the independence of each of these complainants, whilst you must, as I have said, consider the case against and for the defendant on each count separately and return separate, individual verdicts, you may have regard to the evidence in relation to one or more of the other counts because evidence of one count is capable of supporting the Prosecution case on the others, just as the evidence of one woman about the defendant's treatment of her is capable of supporting the truthfulness and accuracy of another woman's evidence as to how the defendant treated her."

The judge cautioned that the jury had to proceed carefully to decide whether in fact the evidence of the witnesses did support each other.

17. The judge also directed the jury on propensity. He explained how, by agreement of both sides, they had heard background evidence about the history of the relationships, the drugs and the violence, albeit that there was a dispute about who began the violence. That evidence, he explained, was not to blacken the appellant's character. Just because he had behaved badly in the past, if they accepted that he had, did not mean that he had done so on other occasions; rather, its relevance was that the prosecution said that the history of the relationships revealed a pattern of behaviour towards women, namely one which became abusive. The judge explained that the appellant painted a very different picture. While adventurous sex and drug taking did feature, the relationships were essentially loving, with Y less so, and all sexual activity was consensual. The judge concluded:

"If, having considered the evidence of both the defendant and the complainants, you are sure that it does show that the defendant had a propensity to treat his girlfriends or indeed all women in a particular way, it is a matter for you to decide whether and, if so, to what extent it helps you to decide whether he is guilty of one or other of these counts on the indictment.

What you will need to remember is that a tendency to behave in a certain way does not of itself prove that he did what is alleged against him in these counts on the indictment. A tendency to behave in a certain way is only part of the evidence in the case and you should not exaggerate its importance. You could come to the conclusion that he treated his girlfriends shamefully yet still not be sure of his guilt on the specific charges which he faces."

The judge then went on to address the jury as to what he summarised as the defence case.

18. Before us, Ms Thorne submits that the convictions are unsafe, first, because of defects in the judge's directions on cross-admissibility and propensity; secondly, there was a failure to put the appellant's case on contamination; and, thirdly, there were factual misdirections.
19. As to the first, her submission is that the judge had misdirected the jury in relation to the cross support that one complainant's evidence could give the other. He had failed to warn them about the dangers of contamination and collusion and had not told them that only if they were sure that the women had not colluded could they use the evidence of one to support the account of the other. As to propensity, Ms Thorne submitted that the judge had misdirected the jury in relation to how to deal with one complainant's evidence supporting another. He had failed to indicate that they should exclude the possibility of contamination or collusion before considering propensity. The judge had not warned about innocent contamination.
20. In relation to the second ground, Ms Thorne contends that there was a possibility of collusion, or at least conscious or unconscious influence, between the complainants. There was the relationship between the two of the women (Y and J) and there had been contact between all three. She took us, for example, to N's ABE interview where, in the course of the interview, N said that Y had contacted her by phone and had texted her on at least one occasion. (We note in passing that in the course of that ABE interview, N's evidence was "I don't know [Y], I've never even met her". That in context was a reference to not having met Y in person, because it is clear from what N also said that she had been in contact with Y both through phone and through texting). That, Ms Thorne contended, was in clear contravention of what the jury had been told, that there was no contact between N and Y. Given that there had been contact, there was the possibility, at least, of innocent contamination. The appellant had given evidence of N causing trouble during his relationship with Y and Y's desire for revenge. That was backed by the evidence of the alleged text.
21. In particular, Ms Thorne underlined the point the appellant had raised about the possible contamination by the treatment of J in the course of the police interview and the way that that might have led to false allegations, first by J, but also by Y and N. She accepted that the appellant had given evidence about the volatile nature of the relationships, but the possibility of contamination was also there, at least implicitly. In her submissions the judge should have addressed the issue of whether, as a result of contact, some of the complainants might have changed their characterisation of what had happened to them from rough sex to rape.
22. None of these arguments persuade us that this appeal should be allowed. First, the judge's directions about cross-admissibility dealt with the possibility of contamination. In the passage we have first quoted the judge told the jury that the prosecution's cause depended on whether they were sure that the complainants were truthful, accurate and reliable witnesses and, significantly, a few lines later, "whether the complaints made by these three women really are independent of each other". The judge then set out the relationships between the women, as we have described. In the second passage we have quoted the judge summarised the prosecution submission that that evidence meant that there was no conscious or unconscious contamination, and that if the jury "accepted" the prosecution submission as to the independence of each of the complainants, they could use the evidence of each of them as supportive of the allegations against the others. In our view, the term "accepted" must be read in the light of what the judge said at the very outset of his explanation to the jury about cross-admissibility, namely that the prosecution case depended on whether the jury were sure, inter alia, that the women were independent of each other. When read as a whole, we conclude from what the judge said that the jury were being warned that they had to be sure that there was no collusion or contamination, in line with what this court has laid down in, for example, R v N(H) [2011] EWCA Crim 730 and R v Lamb [2007] EWCA Crim 1766.
23. As for propensity, we take the view that in the circumstances of this case that issue was closely related to cross-admissibility. The judge explained the evidence and its possible relevance. As we have set out, when he came to propensity he had already dealt with collusion and innocent contamination. In our view, the judge covered all that was necessary in terms of the propensity direction. He warned that the jury should not think that bad behaviour in the past necessarily meant bad behaviour later. In the passage we have quoted he directed the jury that, if they were sure that the evidence demonstrated propensity, it was for them to decide whether it helped them on any of the counts.
24. In relation to the criticism that the judge had failed to put the defendant's case on contamination to the jury and that what he had said was factually incorrect, we have been assisted by what we have been told by Ms Mallett, who was junior counsel representing the prosecution at the trial. She explained -- and we put it in broad terms at this stage -- that contamination had not really featured in the appellant's defence. As we have said, the judge said expressly that in advancing the appellant's defence Mr Atkinson QC did not suggest that there was any issue of conspiracy between the women. Nor, as far as we can see, was there any evidence of conscious or unconscious influence or contamination, subject to what we say in a moment about possible contamination because of the way the police had interviewed J.
25. As we have said, the appellant's defence in cross-examination of the complainants, his own evidence and the evidence he called was denial. He never suggested deliberate or innocent contamination in the case of the three main complainants. That too is underlined by the nature of the counts. Count 1, involving N, was a count of anal rape, but the appellant's account was that he could recall on one occasion that he had begun to have anal intercourse with N, but that once she had drawn breath sharply, he had immediately desisted. Innocent contamination is not relevant to his defence on that count. So, too, with the two counts involving Y, where the appellant's defence was that these did not happen. That was also his defence with A: the sexual assault simply did not happen. In relation to J, count 8, where he conceded that he had spat into her mouth on one occasion while having intercourse, his account to the jury was that he thought she might like it since he had done that on previous occasions with other girlfriends. In terms of the count of anal rape involving J, his defence was it was consensual.
26. In our view, it is difficult to see how, in terms of his defence on these counts, contamination could arise. As we have said, the explanation he offered for what he contended were their fabricated allegations was that it derived from the police enquiries, first of all with J, and then leading on to the interviews of N and Y. As far as we can see, and this is confirmed by Ms Mallett, the defence he put at trial was that the complainants had fabricated their accounts not through contamination, but because they were motivated by revenge, or in Y's case, as we have explained, by a grudge.
27. None of that raised contamination, innocent or otherwise. The suggestion about N's trouble-making really went to her credibility and her motive for making the allegations, as did the explanations about revenge and grudge.
28. Ms Thorne has conceded before us that she can make no complaint that the case put to the jury in terms of the appellant's defence was, apart from her complaint about contamination, otherwise unbalanced or unfair.
29. Finally, it is apparent to us that the jury gave close attention to what the judge had said and to the evidence they heard during two weeks of the trial. They convicted the appellant of the counts involving J, notwithstanding her evidence at trial. On the other hand, they acquitted the appellant on two of the counts involving N, counts 3 and 4. That, to our mind, demonstrates that the jury accepted that the appellant's guilt on some counts did not automatically mean his guilt on all. If they had thought in relation to any of the complainants that there was a possibility of contamination, we cannot conceive that they would have brought in those verdicts. We do not believe that there is a danger that that happened. We dismiss the appeal.