England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
ON APPEAL FROM SNARESBROOK CROWN COURT
Her Honour Judge Lees

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/04/2014

Lord Justice Pitchford :

Introduction

1. This is an appeal against conviction and sentence brought with the leave of the single judge. On 4 December 2012, following his trial for an offence of rape before Her Honour Judge Patricia Lees at Snaresbrook Crown Court, the appellant was convicted by the unanimous verdict of the jury. On 12 December 2012 he was sentenced to a term of 9 years imprisonment. The complainant ("CH" or "the complainant") is entitled to anonymity under the provisions of the Sexual Offences (Amendment) Act 1992. The appeal against conviction raises an issue as to the proper approach to a judgment whether to exclude evidence of sexual behaviour of the complainant relating to a "relevant issue in the case" within the meaning of section 41(2) of the Youth Justice and Criminal Evidence Act 1999. The appellant argues that the trial judge's ruling deprived him of a fair trial. It had the effect of curtailing the evidence of the appellant relevant to his defence of honest and reasonable belief in the complainant's consent to sexual intercourse.

The evidence

2. At the time of the alleged rape CH was aged 25. On the evening of Sunday, 31 October 2010, she contacted Arber Kadena, a man she had been seeing for some weeks, and told him that she was in the Baker's Arms public house in Leyton. He picked her up in his car in company with his friend Liman Xhebexia (known as "Lee"). Eventually all three went to a bar in the Shoreditch area, where they were joined by the appellant, introduced to the complainant as "Timmy", Adil Zaman, and a man called "Tony". The appellant, Lee and Tony were Albanian nationals who, in the complainant's company, sometimes spoke in their own language and at other times in English. The whole party went back to CH's house in the early hours where, in the living room, they continued drinking and took cocaine.
3. The complainant said that during the course of the night the appellant asked her whether she would have sex with him. The complainant dismissed the question. Later, he asked her how much she would charge him for sex. That resulted in an argument. Kadena intervened. After a time both of them apologised, the appellant for making the request and the complainant for losing her temper. That incident was witnessed by Adil Zaman, who gave evidence in the course of the prosecution's case. At or about 4.00 am Adil and Tony left the house. At approximately 6.00 am the complainant and Kadena went upstairs to the complainant's bedroom where they had sexual intercourse, leaving the appellant and Lee downstairs. The complainant gave evidence that she went to sleep on her front as she normally did.
4. The complainant said that she was next aware, while still lying on her front, of the appellant on top of her having sexual intercourse. She struggled but he ignored her protests and, using his weight on her body and neck, continued until he ejaculated. The complainant could see that Kadena and Lee were standing in their boxer shorts close to the bed, watching. They did nothing to assist the complainant who got out of bed and ran downstairs screaming. At this point the men hurriedly started to get dressed. The complainant's screaming alerted her next-door neighbour and best friend, Katie, who banged on the complainant's door. As the men were leaving, the complainant asked Kadena why he had done nothing to help her. He replied, "You probably enjoyed it".
5. Katie gave evidence that she was getting her young son ready for school when she heard CH screaming, "Get off me, get out of my house". As she arrived at the complainant's door the men were leaving. She realised that one of them was Kadena; she said he was "making excuses". CH complained that she had been raped. Katie had to take her son to school. When she returned CH said she did not want anyone to know about the incident. Nevertheless, Katie called CH's mother who arrived with CH's cousin and they persuaded her to go to the police. CH called at Walthamstow police station that afternoon.
6. The complainant was inconsistent in her account to the police and obstructive when they asked her to submit to an examination. She appears to have been motivated by a wish to protect Kadena from an allegation of complicity in the alleged rape, and by a desire to secure alternative accommodation, saying that she no longer wished to live in the house where the alleged rape had occurred. However, even in the expression of these wishes and in her conduct she was inconsistent. Her ABE interview did not take place until December. The defence asserted that her account of the circumstances of her sexual intercourse with the appellant was unreliable.
7. The appellant's evidence was that when Kadena returned downstairs he went up to the bedroom at Kadena's invitation. He said that when he opened the door the complainant said, "Hello", and drew back the bed covers. They had consensual sexual intercourse in which the complainant took the lead. At the point of ejaculation Kadena entered the room. Lee was behind him. On seeing them the complainant jumped out of bed and ran downstairs.
8. In February 2011 Arber Kadena was arrested on suspicion of causing a person to engage in sexual activity. He denied having a friend known as "Lee". He made no mention of any pre-arrangement between himself and the appellant, and denied that the appellant had offered the complainant money for sex. Kadena said that he went to the bedroom and found the appellant and the complainant having sexual intercourse. According to him, the complainant said, "Oh, I thought it was you". He said that they argued, not because the complainant was angry with him but because he was disgusted with her. Although, afterwards, she made frequent attempts to contact him, he was largely able to avoid her. At trial Kadena refused to give evidence for the defence, saying that he was frightened of someone he believed to be a relative of the complainant. Kadena's interview was played to the jury as hearsay evidence during the defence case, by agreement between the prosecution and the defence, although neither side accepted that he had told the whole truth. He appeared to be protecting Lee, an indication that he and Lee were complicit in the alleged rape. On the other hand, he denied knowledge of the appellant's intention to have sexual intercourse with the complainant. There was no medical or scientific evidence that supported the account either of the complainant or of the appellant.

The proceedings

9. The trial had first been listed before Mr Recorder Boyce on 24 September 2011. Arber Kadena did not attend. By the time he was located there was insufficient time for the Recorder to complete the trial during his allotted sitting. Accordingly, the trial was assigned to HHJ Kennedy on 26 September 2012. It was before Judge Kennedy that agreement was reached as to the reading or playing of Kadena's hearsay statements in interview. Ms Young also made an application (under section 41 of the Youth Justice and Criminal Evidence Act 1999) to Judge Kennedy to adduce in evidence a conversation between the appellant and Lee in the complainant's and Kadena's presence that took place in the living room before the alleged rape. The relevant parts of the conversation were in Albanian and it was not suggested that the complainant had any understanding of them. Lee told the appellant that he had had sexual intercourse with the complainant on at least one previous occasion a week or so earlier. It had occurred while Kadena was in the house and with his consent. Kadena was aware of what was being said by Lee and did nothing to contradict him. Later, the appellant wanted to find a brothel. Lee persuaded him to stay because they could both have sexual intercourse with the complainant. Again Kadena was present and made no objection. The appellant raised in English the question with the complainant whether she would have sex with him. Her response was dismissive. Later, he asked how much money it would take. The complainant reacted angrily. Kadena smoothed things over. Shortly afterwards, Kadena went upstairs with the complainant. When he returned the appellant asked whether he and Lee could go upstairs for sex and, if so, which of them should go first. Kadena indicated that the appellant should go and he did. The appellant thought that Kadena must have obtained the complainant's agreement, which is why he went upstairs.
10. Judge Kennedy concluded that evidence of the conversation would not offend section 41 of the Youth Justice and Criminal Evidence Act 1999 because it went to a relevant issue, other than consent to sexual intercourse. It was submitted on behalf of the Crown that the factual issue between the prosecution and the defence was simply whether the complainant was willing to have sexual intercourse with the appellant. The appellant's understanding before he entered the bedroom was irrelevant. The judge held that what the appellant reasonably believed during sexual intercourse might, to some extent, have been formed from information he had been given by others. As the judge put it, although the application was stretching the boundaries, he was going to allow the evidence to be given.
11. In the course of the complainant's evidence in the first trial it became clear that counsel had been treating as a witness statement made by her a document that merely comprised the typed up notes of a conversation between the complainant and a police officer. As a result, the judge discharged the jury and the trial was re-listed before Judge Lees. By this time Liman Xhebexia (Lee) had been located. He was serving a sentence of 5 years imprisonment for robbery. In his witness statement Lee accepted that he had been at the complainant's house on 31 October. However, he claimed that when the complainant and Kadena went upstairs to bed he had gone to the shops to purchase some water and returned only after the alleged rape had taken place. The prosecution elected not to rely on the evidence of Lee but agreed to make him available to the defence. In the result, Lee was not called to give evidence. On 27 November 2012 Ms Young repeated her application for the admission of the evidence of conversations between Lee and the appellant. The Crown again objected.
12. Judge Lees ruled that (i) it was permissible for the appellant to say in evidence that he entered the bedroom believing, as a result of what he had been told, that the complainant would be willing to have sex with him, but (ii) it was not permissible for him to relate to the jury the content of that conversation, since to do so would introduce evidence of the complainant's previous sexual behaviour. The judge also ruled that the defence could not ask questions of the complainant about any previous sexual encounter with Lee.
13. In the course of argument before Judge Lees, Ms Young conceded that nothing that was said before the appellant entered the bedroom could establish that the complainant consented to sexual intercourse with him. The evidence, she submitted, went to the issue what was the reason why the appellant, a stranger to whom the complainant had refused sexual intercourse, should have entered the complainant's bedroom at all.
14. When the appellant gave evidence he accepted that he had asked the complainant whether she would have sex with him. She did not reply. He said he continued chatting with his friends in Albanian. The conversation with Lee was about whether the complainant would be willing to have sex. Then the appellant asked the complainant if she would sleep with someone for £1,000. The complainant became angry. Later she apologised. The appellant asked Lee in Kadena's presence about her reaction and Lee insisted that she would be willing to have sexual intercourse. That conversation continued after Kadena and the complainant went upstairs. Kadena came down in his shorts and, after a few minutes, the appellant went upstairs, believing that the complaint would consent to sexual intercourse.
15. At the close of the evidence Ms Young raised with the judge a question whether the jury should be informed that the evidence they had heard from the appellant had been circumscribed by the judge's ruling as to the admissibility of evidence. The judge took the view that any such direction would deflect the jury away from a proper consideration of the appellant's evidence towards speculation in an inadmissible area. She also declined to permit Ms Young to address the jury on the issue.

The grounds of appeal

16. The appellant now raises grounds of appeal, which we paraphrase as follows:

(i) The judge was wrong to rule the conversations between the appellant and Lee inadmissible;

(ii) As a result, the appellant was hamstrung when giving his own explanation to the jury;

(iii) The judge should have explained to the jury that in case they wondered why the appellant had not been asked more searching questions about the conversations, they should know that the judge had ruled such questions inadmissible;

(iv) As a further result, the judge's summing up of the evidence appeared to be one-sided.

Section 41: evidence of sexual behaviour

17. We turn to the issue whether the appellant's conversations with Lee were admissible under section 41 of the Youth Justice and Criminal Evidence Act 1999. By section 41(1) no evidence may be adduced, nor any question asked in cross-examination by or on behalf of the accused, about any sexual behaviour of the complainant, save with the leave of the court. Section 41(2) provides that the court may give leave only if (a) sub-section (3) or sub-section (5) applies, and (b) refusal might result in rendering unsafe a conclusion by the jury "on any relevant issue in the case". It is common ground that on the facts of the present case only sub-section (3)(a) was in play. It provides:

"(3) This sub-section applies if the evidence or question relates to a relevant issue in the case and either –

(a) that issue is not an issue of consent; or

(b) … or

(c) …"

However, sub-section (4) provides:

"(4) For the purposes of sub-section (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 impugning the credibility of the complainant as a witness."

By section 42(1)(b), an issue of consent means any issue whether the complainant in fact consented. It does not include the issue whether the accused believed the complainant was consenting.

18. In R v A (No2) [2002] 1 AC 45, the House of Lords held that circumstances might arise in which the section was capable, unless given a generous interpretation, of depriving the accused of a fair trial. For example, read literally it might prevent the accused from relying upon relevant previous sexual history between the accused himself and the complainant where the issue was consent but the act did not take place on the same occasion and did not amount to similar fact evidence. Lord Hope, at paragraph 79, gave examples of issues to which the evidence may be relevant under section 41(3)(a), including whether the accused held an honest belief that the complainant was consenting.
19. In Barador [2005] EWCA Crim 396 (Lord Woolf CJ, Davis and Field JJ) the court was also concerned with the application of section 41(2)(b). The appellant was charged with pre-2003 Act sexual offences. He wished to give evidence that he honestly believed the complainant was consenting to sexual activity with him because, earlier on the same evening, he had observed her behaving in a sexually explicit manner on stage in a nightclub. He sought leave to cross-examine the complainant as to that behaviour. The prosecution argued that the complainant's earlier behaviour was irrelevant to the issue of his belief; to hold otherwise would mean that "every stripper who performed at a club would convey the message that by conducting herself in that way she was indicating that she was consenting to sexual attention by someone such as the appellant, and consent in particular to be touched in a sexual manner by a complete stranger".
20. In giving the judgment of the court, Lord Woolf said, at paragraph 12, that "looking purely at the question of relevance, we feel compelled to conclude that as the appellant's defence was one based on his honest belief, it is difficult to say that what he contended to have taken place on the stage could not be relevant". Nonetheless, at paragraph 13, the court concluded that relevance to an issue in the case was not the only matter that the judge had to consider. Even if the appellant could satisfy the requirement of sub-section 3(a), the judge must also consider, under section 41(2)(b), whether a decision to exclude evidence of sexual behaviour might have the result of rendering unsafe a conclusion of the jury on that issue. If it would not, leave would be refused. Although the court referred to the exercise of a "discretion" it is clear from the context that the decision to be made under section 41(2)(b) was one of judgment. It seems to us that the exercise of discretion may well arise, as it did in the present case, when the trial judge considers the form in which relevant evidence may be left to the jury. At paragraph 17 of his judgment Lord Woolf identified the legislative intention behind section 41(2)(b):

"17. … it was framed in that way because it was the policy of the Act to protect women who make complaints about sexual offences committed against them; it protected them from inappropriate and harassing cross-examination. The experience of the legislature leading to the enactment of the 1999 Act was that unless the cross-examination and the making of accusations against complainants was limited within appropriate bounds, fewer women would come forward to make complaints about sexual assaults on them. The policy was to protect complainants in proceedings in relation to sexual offences alleged to have been committed against them. It seems therefore to us that it can be reasonably said in the context of this case as a whole, albeit that what was alleged to have happened on the stage … was, strictly speaking, relevant to an issue in the case, the judge would have been entitled to exclude the evidence of what is alleged to have occurred on the stage and cross-examination as to it."

We would respectfully add that the policy of the Act (through section 41(1) and (4) in particular) includes the need to protect women from similarly unjustifiable slurs introduced through the evidence of witnesses other than the complainant.

21. The court in Barador reached its conclusion under section 41(2)(b) because it was also the appellant's evidence that, just before he engaged in sexual activity with the complainant, he asked his co-accused whether she was "up for it", to which he received a positive response. It seemed to the court inevitable that, upon the issue whether the appellant held an honest belief, the complainant's activity on stage in the nightclub faded into insignificance beside this exchange between the appellant and his co-accused. Further, and in any event, the court concluded that the judge's exclusion of the evidence of the complainant's behaviour on stage had no material effect upon the safety of the verdict.
22. Section 41(4) is, it seems to this court, an important brake upon the admission of evidence (whether in cross-examination of the complainant or not) whose real purpose is, by reference to actual or alleged past behaviour, to cast the complainant in stereotypical and unfavourable terms in order to suggest that she is the kind of person who, despite her denial, would behave willingly with the defendant as he alleges. We observe that the risk properly identified by Judge Lees in the present case was that, under the guise of evidence going to the state of the appellant's belief, there would be admitted evidence calculated to imply that the complainant was a woman of easy virtue, perfectly prepared to have sexual intercourse with a man, other than her boyfriend, at first meeting.
23. Neither Judge Kennedy nor Judge Lees gave a formal ruling upon the appellant's application. We are bound to observe that it is both desirable and necessary for the trial judge, at some stage during the trial, to give a formal ruling upon an issue of admissibility of evidence of this substance, together with reasons. This court has been required to examine transcripts of exchanges between counsel and the Bench from which to attempt to reconstruct the reasons for judgment. The defendant is entitled to understand the formal reasons for a decision to exclude evidence under the section, and this court is placed at a disadvantage if the judge's reasoning towards a decision is inadequately revealed during argument.
24. We conclude that in the present case Judge Lees accepted that the appellant's evidence as to conversations between himself and Lee were relevant to an issue in the case, but that it was unnecessary for the jury to hear of the terms of those conversations in order to reach a safe conclusion upon the issue of his belief in consent.

Analysis

25. Upon the application made by the appellant to admit the evidence the judge was required to make her decision in the following stages:

(1) Was the evidence about any sexual behaviour of the complainant (section 41(1))?

(2) Did the evidence relate to an issue other than consent (section 41(3)(a))?

(3) Did the evidence of sexual behaviour relate to a relevant issue in the case (section 41(3))?

(4) Did it appear that the purpose of the evidence was to impugn the credibility of the complainant (section 41(4))?

(5) Would the exclusion of the evidence render unsafe any decision of the jury upon the issue raised (section 41(2)(b))?

There was no dispute as to the first question. As to the second and third questions the appellant argues that the conversation between himself and Lee was material to the issue whether, when he entered the complainant's bedroom, he honestly believed that the complainant would consent to sexual intercourse with him. That was, by virtue of section 42(1)(b), an issue other than consent and, it seems to us, a relevant issue in the case. It was a relevant issue because the jury would (and did) hear from both the complainant and the appellant in evidence that she rebuffed, and was angered by, the suggestion that she might have sexual intercourse with him. In the absence of an explanation the jury might infer that the appellant's intention from the outset was to have sexual intercourse with the complainant with or without her consent. Accordingly, direct encouragement by Lee and implicit encouragement by Kadena might, on the appellant's case, provide that explanation. In this regard we accept that (question 2) the issue was not one of consent and that (question 4) the purpose of admission of the evidence was not to impugn the credibility of the complainant but to bolster the credibility of the appellant. However, the final question (question 5) for the judge was whether it was necessary to admit evidence of Lee's claim as to his own act of intercourse with the complainant on an earlier occasion in order to render safe a conclusion by the jury as to the appellant's state of mind when he entered the bedroom.

26. It may well be, as in the case of Barador, that there will be circumstances in which evidence of a conversation between the defendant and a person other than the complainant will have probative value in relation to the issue of honest and reasonable belief in consent. Each application must be decided according to its own circumstances. In the present case we entertain considerable doubt that the appellant's credibility on this issue can have been improved by the admission of the evidence. It was common ground between the prosecution and the defence that the complainant had rejected the appellant's advances. We do not comprehend how the appellant's knowledge of Lee's experience with the complainant could possibly have informed him that, nonetheless, the complainant would be willing.
27. Ms Young accepted, and Judge Lees ruled, that the issue whether in fact Lee had had intercourse with the complainant was not admissible under section 41(3). That created a dilemma for the judge. The terms of the conversation, while not direct evidence, revealed evidence of the complainant's sexual behaviour whose admission was prohibited unless it was necessary to admit it under section 41(2)(b). The judge considered that the solution was to permit the appellant to give evidence that Lee provided him, in the presence of Kadena, with repeated assurances that she would consent to sexual intercourse with him despite her earlier anger at the suggestion that money might change hands.
28. Ms Young submits that this was not a solution that did justice to the appellant's case. In her submission, knowledge of the basis for Lee's assurances to the appellant may have enabled the jury to conclude that the appellant honestly believed she would. Mere assurances from Lee in contradiction of the appellant's own experience might not have been enough to explain his decision to enter the bedroom.
29. As we have said, we do not consider that the admission of the full content of these conversations would have improved the appellant's standing in the eyes of the jury or, more particularly, that it was necessary to admit the evidence to avoid an unsafe conclusion by the jury. The fact that Lee told the appellant he had had sexual intercourse with the complainant on a previous occasion cannot have amounted to any justification for a belief held by the appellant that she would consent to sexual intercourse with him when she had explicitly rejected him. Furthermore, the line of reasoning required was exactly that prohibited by section 41(4): that a woman who consents to intercourse with one comparative stranger will, a week later, and in different circumstances, consent to have intercourse with another. Of some probative value on the issue were the assurances given by Lee in the presence of Kadena. The judge permitted that evidence to be given.
30. Ms Young submitted that the effect of the prohibition was that the appellant had no alternative when questioned about his decision to enter the bedroom but to repeat his "mantra" that Lee had persuaded him in the presence of Kadena that he could properly do so. We note that when Ms Young expressed the same fear to the trial judge while inviting her to give further directions to the jury upon the subject, the judge observed that the appellant had dealt with the matter perfectly satisfactorily in his evidence and she concluded that specific reference to the issue in her summing up would only make matters worse. We conclude that the judge was right to rule that the evidence should not be admitted. It was, thereafter, eminently a matter for the assessment of the trial judge whether any reference to the issue in her summing up was necessary to maintain the fairness of the trial. We are not persuaded that the judge erred when concluding that the circumstances required no direction to the jury.
31. We turn, finally, to the question whether if, contrary to our view, the evidence should have been admitted, the refusal of the judge to admit it had any effect upon the safety of the verdict. We concur with the argument addressed by Mr Eaglestone to both Judge Kennedy and Judge Lees that the issue of honest belief raised by the appellant was of marginal significance in the context of the case as a whole and that the excluded evidence was of dubious value upon the issue in any event. Once he was inside the complainant's bedroom, on neither case, prosecution or defence, did the fact of previous intercourse with Lee, or the appellant's understanding that the complainant would, or might consent, remain of any significance. The appellant's case was that whilst the complainant was lying almost naked in the bed, she drew back the bedclothes to welcome him into her bed. The complainant's evidence was that she was fast asleep; she awoke to find the appellant having sexual intercourse with her; she protested violently, but he forced her down while he completed his act to ejaculation. There is a critical difference between a belief that the complainant will consent if asked and an honest and reasonable belief at the time of the act of intercourse that the complainant is consenting. Upon the evidence in the present case we conclude, contrary to the preliminary view taken by Judge Kennedy, that the conversations were irrelevant to the second issue. It was not the appellant's case that, in the bedroom, he gave no thought to the question whether the complainant was consenting because he relied upon a previous assurance from Lee; it was his case that the complainant was not only willing but also enthusiastic. Nor was it the appellant's case that he was told the complainant wished to have sexual intercourse with him; it was that despite the anger previously expressed she would consent if asked. The appellant gave evidence that if the complainant had indicated that he was unwelcome, he would have left the bedroom. Finally, it would not have availed the appellant if, contrary to his evidence, the jury concluded that he commenced sexual intercourse while the complainant was asleep, because, if that was the case, he knew that the complainant was incapable of consenting because she was unconscious in sleep. There was, in other words, no half-way house in which an honest and reasonable belief in consent could have resided.
32. The complainant's evidence was to the effect that Kadena and Lee were complicit in the appellant's act of rape. The appellant's evidence was to the effect that Kadena and Lee were complicit in the appellant's act of consensual sexual intercourse. Kadena's hearsay account was that he was surprised to find the appellant and the complainant having consensual sexual intercourse; that there had been no pre-arrangement or understanding between himself and the appellant. In deciding where the truth lay, it seems to us that the evidence of the complainant's neighbour would have been critical. We have already demonstrated the limited issue to which the evidence of the conversation between the men was relevant. In our judgment, the issue whether the appellant held an honest belief when he entered the complainant's bedroom was subsumed by the events which followed.
33. At pages 13-17 of the transcript of her summing up, Judge Lees reminded the jury in bare summary of the evidence relevant to penetration and consent. She then turned to the issue of reasonable belief in consent. She reminded the jury of the appellant's evidence that he had entered the complainant's bedroom believing that she would consent and the reason for that belief. The judge reminded the jury of the complainant's explicit rebuff and, at page 19C, continued:

"It is a matter for you whether that indeed could form a reasonable belief for an adult without, for example, any mental impairment, to rely on the assurances of a third party in the face of outright rejection from the woman whose consent he needs. It is a question for you to decide but it is important for you to focus on the fact that what matters is what happened in the bedroom because, before the sex took place, on his account, his belief was formed for the reasons that he gave in evidence, so it is important to remember that the questions of both her consent and his reasonable belief in her consent relate to the time at which the intercourse took place."

This was an accurate statement of the important issues the jury had to resolve and demonstrates the extremely limited significance of the section 41(3)(a) issue raised by the appellant. The judge proceeded to remind the jury in summary of the evidence given by the complainant on the one hand and the appellant on the other as to events in the bedroom. She continued, at page 20C:

"Here there is a direct conflict in the evidence that leaves no room for mistake or misunderstanding. Someone has lied to you about what happened in the bedroom because, in contrast to what the defendant says about her saying "Hello" to his "How are you?", and him going over to her, effectively with her agreement, [CH] said that she woke from her sleep face down, as is usual for her in the sense that that is the way she sleeps, to feel the weight of the defendant on top of her and inside her and she said she was struggling and screaming and he prevented her from getting off until he had ejaculated."

34. We do not accept the submission made by Ms Young that the jury may have resolved the issue of credibility between the complainant and the appellant upon the ultimate issue in the case by reference to a decision whether it was reasonable for the appellant to have entered the complainant's bedroom at all. We entertain no doubt that had the jury heard of Lee's claim to have had sexual intercourse with the complainant on a previous occasion it would have had no material effect upon the jury's consideration of the question who was telling the truth about the immediate circumstances of the act of intercourse. Furthermore, had the jury learned of the claim made by Lee, the judge would have given them a firm direction about the effect which that evidence might have upon their consideration of the appellant's claim to an honest and reasonable belief. In response to an argument employed by the prosecution, Ms Young relied in her address to the jury upon a passage in Kadena's interview with the police in which he had said that he and the complainant had sexual intercourse on the night they first met. The judge directed the jury at page 11G as follows:

"You might wonder what possible relevance it could have as to whether or not, even if she had agreed to have sex with Arber Kadena when she first met him, she would have agreed to have sex with the defendant on this occasion. People make decisions about whether they are willing to be intimate with others based on all sorts of factors including what degree of attraction they feel and their personal circumstances, including any other relationship they are in."

Had the jury been informed of the full contents of the conversation between the two men we have no doubt that the judge would have provided the jury with an explicit and necessary direction to the following effect: (a) they may wonder how Lee's revelation could provide any support for the belief claimed by the appellant and (b) they must in any case concentrate on events in the bedroom.

Conclusion

35. We do not accept that the appellant should have been permitted to relate the content of the conversations with Lee on which he relied. Had the jury received evidence as to the content of the conversations, the appellant's position would not have been improved in the eyes of the jury. There was no necessity for a direction of law to the jury on the subject of the judge's ruling. We have examined the summing up with care and do not accept that the judge was one-sided in her exposition of the issues and her summary of the evidence. In our judgment the verdict of the jury was safe and the appeal against conviction is dismissed.

Appeal against sentence

36. The appellant has convictions for assault and possession of class A drugs but no previous conviction for a sexual assault. The judge, in her sentencing remarks, declared herself satisfied that there was complicity between the appellant, Kadena and Lee. Kadena and Lee looked on, waiting their turn, knowing that the complainant was struggling and protesting. She turned on them, screaming, traumatised, angry and frightened. Kadena threw the appellant the keys to her car and he made his escape. The judge concluded that the circumstances, namely the rape of a woman in her own home in the presence of other men, was especially demeaning. The judge was provided with a victim statement. She observed that the long-term effects upon the complainant were incalculable. The immediate and medium term effects had been profound. CH had a young daughter with whom for a time, as a result of a feeling of shame, she was unable to communicate. She had ceased attendance at her university course, had moved house and had become isolated in her new community. Her emotional trauma was, the judge observed, deep- seated.
37. The judge expressed herself satisfied that three men were acting together. Accordingly, it was a category 2 offence of rape under the Sentencing Guidelines Council guideline for offences contrary to the Sexual Offences Act 2003, for which the advised starting point was 8 years custody and the range 6-11 years custody. The judge concluded that the offence was committed in breach of trust, the appellant having been invited into the complainant's home as a guest. Two further aggravating features were unprotected ejaculation and planning. In the course of her sentencing remarks, the judge made reference to the discovery of a package of Viagra in the complainant's living room and the consumption of alcohol and drugs.
38. It is submitted on behalf of the appellant that the judge's findings of breach of trust and planning were not justified on the evidence. Accordingly, the appellant should have been sentenced as a Category 3 offender.
39. Section 16 of the Sexual Offences Act 2003 creates an offence of sexual assault on a person in respect of whom the defendant is in a position of trust. Such a position of trust is defined in section 21 of the Act. The appellant was not in such a position in relation to the complainant. However, abuse of a position of trust may occur in other non-statutory aggravating circumstances. The SGC's guideline recognises, at page 51, that an offence committed against a child will be aggravated where the offender has assumed responsibility for the welfare of the child, as a family member or otherwise. A defendant may have assumed a position of responsibility for an adult victim rendered vulnerable by a permanent or temporary incapacity (see, for example, Attorney General's Reference No 120 of 2009 [2010] EWCA Crim 577). There are other circumstances in which a defendant, performing for example a public service, takes advantage of his position to commit the offence. When the offender abuses the trust reposed in him that abuse will be treated as an aggravating factor. In our opinion, no such position of trust arose merely by reason of the appellant's presence in the victim's home as a guest. However, the evidence accepted by the judge was that the appellant used the opportunity to take advantage of the vulnerable position of the complainant by commencing sexual intercourse with her while she was asleep and continued to force himself upon her in the presence of two other men. This, we consider, was a serious aggravating factor as was the humiliation of rape taking place in the victim's own home.
40. We do not consider that it was open to the judge to conclude that the three men planned a rape upon the complainant. This was a developing situation the culmination of which was the presence of two men in the room, to whom it must have been obvious that the third was having sexual intercourse with his victim without her consent. The judge would have been justified in concluding that at this stage all three men were complicit and, for this and the other reasons we have identified, right to place the seriousness of this offence in Category 2. We accept Ms Young's submission that there was no evidence that the complainant was rendered vulnerable through drink or that the presence of Viagra in the living room signified any pre-concert or could be attributed to any one of the men present. However, it is accepted that unprotected ejaculation was a further aggravating insult to the complainant. In our judgment, looking at the seriousness of the offence as a whole, it is not demonstrated that a sentence of 9 years imprisonment was manifestly excessive and the appeal against sentence is dismissed.