England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday 20 August 2015

LORD JUSTICE TREACY:

1. In late 2013 in the Central Criminal Court this appellant was convicted of two counts of rape after a re-trial. He was subsequently sentenced to fourteen years' imprisonment.
2. The appellant now appeals against his conviction raising two grounds: first, there is fresh evidence relating to the distribution of semen on a duvet which is material to the appellant's case as advanced at trial; secondly, there is a complaint about the way the judge dealt with the alleged behaviour of an intermediary who assisted the complainant to give evidence.
3. The facts show that KC (the complainant) was a woman with a difficult history. We record the fact that she is entitled to anonymity under the law. The judge focused the jury's attention on this history early in the summing-up, and there were admissions. They show that KC had a well-established diagnosis of emotionally unstable personality disorder, depression and mild various disabilities. She had a history of self-harm, suicidal thoughts and repeated admissions to hospital as a result of overdoses and mental health problems. She had repeatedly complained of hearing voices and other audio and visual hallucinations. She had been admitted to psychiatric units on numerous occasions and had a history of non-compliance or overdosing with her medication.
4. Some of her mental health problems seem to have stemmed from a reported history of sexual abuse and she stated that she was preoccupied with thoughts or flashbacks of such abuse. During the course of the investigation of this matter she had apparently accused a police officer concerned in the case of sexually assaulting her.
5. At the material time KC was living in a hostel in London. It was supported accommodation for vulnerable women. The seven residents were permitted to have guests to stay overnight. There was no warden on the site. KC's room was on the ground floor. At that time a woman called Emily Bushell lived in the room on the third floor. She and this appellant were in a relationship, and he stayed regularly overnight.
6. On 10 April 2012 a friend of the complainant contacted the emergency services to say that the complainant had taken an overdose. At the hospital she disclosed that she had been raped on the previous Tuesday (6 April). As a result of that, a psychiatric nurse spoke to KC who said she had been raped in the hostel by a man called Anthony whose girlfriend Emily also lived at the hostel.
7. An investigation began. KC's duvet cover was recovered and scientifically examined. It had not been washed since semen, which was found on it, had been deposited. The circumstances of the deposit of the semen are central to this appeal.
8. The Crown's case was that the appellant had raped KC orally and vaginally. He had relevant previous convictions. In 2001 he was convicted of vaginal rape and indecent assault by inserting his penis into the mouth of the victim, his former partner. The Crown said it was beyond coincidence that the duvet upon which the victim said she had been pushed and been raped should have semen staining on it which was accepted to be that of the appellant.
9. The defence case was one of denial. The appellant said he had visited the hostel on the night in question but had spent all night in Miss Bushell's room. The appellant accounted for his semen on the duvet by saying that at about ten to fourteen days before the night of the alleged rape he had had intercourse with Miss Bushell and then got up and gone downstairs to find a hoover to tidy up her room. He became aware that some semen was leaking down his leg. Although he could have gone to a bathroom to freshen up, he came across some dirty laundry in the hallway which must have contained the complainant's duvet cover. He picked up an item from this pile and he wiped himself with it thereby transferring his semen on to the item. His defence statement suggested that he had wiped semen from his hands, leg and genital area.
10. The defence also submitted that KC was not a reliable witness and that she had given a number of inconsistent accounts regarding details of the alleged rape.
11. The central issue for the jury was whether they could be satisfied of the reliability of KC's account and in particular whether the events she described really did take place or whether they were mere fantasies. There was potential support for her account by reason of the DNA evidence and also by reason of the appellant's previous convictions.
12. KC gave her evidence with the assistance of an intermediary. Her account was one of being disturbed at about 2 am by a knock on her doorway. When the door was opened the appellant had forced his way in and had then proceeded to attack her sexually, during the course of which he ejaculated. The attack took place on the complainant's bed on which there was a duvet cover and a red blanket. The whole episode took place over a period of about twenty-five minutes. KC's evidence was that her pyjama bottoms had been pulled down or off during the attack and that after the attacker had left she had stayed in or on the bed for a few minutes. KC said that she had last washed her bedding about three weeks before the incident. She said that she would never leave her bedding outside the bedroom.
13. In cross-examination it was put to her - based on records kept by others - that she had given accounts of the rape which differed in detail. One example is that while she had said in her ABE interview that ejaculation was over the pubic area, Dr Brennan - who saw her - had recorded that KC had said that ejaculation was over her bottom. In response to this, she said that the doctor had misunderstood her.
14. There was a number of other matters relating to the attack and the surrounding circumstances which the defence submitted showed inconsistency. These were all fully put before the jury by the judge in summing up.
15. The hostel manager gave evidence, saying that she did not recall ever seeing laundry outside residents' rooms, and particularly in relation to KC's room. She described her as "very tidy and minimalist". The jury had a photograph showing the way in which KC kept her room.
16. The Crown produced evidence from a forensic scientist Mr Ellis, identifying the appellant's DNA on the duvet cover. The red blanket was not examined. There was a number of areas of seminal staining distributed over the duvet cover. Mr Ellis had proceeded on the basis that the attacker had ejaculated outside of KC's vagina and on to her leg area.
17. Mr Ellis had then been asked to consider the explanation put forward by the appellant for the presence of the semen. Mr Ellis said that if the appellant had used the duvet cover to wipe himself as described, he would have expected semen to be deposited on the duvet in several areas, particularly if the duvet was gathered up. This would cause more than one area to become stained simultaneously. 18.According to Mr Ellis, the appellant's version of events could potentially explain the presence of his semen on the duvet cover. He also stated that the results of chemical screening did not allow one to determine by what mechanism the semen was deposited. Nevertheless, he could not say whether the stains were from ejaculation onto the cover or were stains consistent with semen being wiped onto the cover. On the basis that the duvet had not been washed following the alleged wiping by the appellant, the findings did not assist in addressing whether or not the appellant had ejaculated onto the duvet in the course of the attack as alleged.
18. The appellant had commissioned a report from another expert, Dr Hau. At the time he was asked to prepare his report he understood that the appellant had used the duvet cover to clean his hand so as to wipe semen from it. His view was that if the majority or all of the semen detected related to the appellant, which he considered likely, then the scientific findings could not be explained by the appellant's version of events. However it is to be noted that Dr Hau's understanding was that the wiping only involved the appellant's hand. On that basis, he thought that the scientific findings provided greater support for KC's version of events rather than that of the appellant.
19. Dr Hau's evidence was not put before the jury. The defence decided not to use Dr Hau's report in the light of its content. Although his understanding of events did not tally with what the appellant put forward in his defence statement, he was not asked to consider the matter further even though the appellant's solicitors had a year between receipt of his report and the retrial. It appears that the defence were content to leave matters as they were, given the opinion of Mr Ellis to the effect that he was unable to say whether the distribution of semen over the duvet cover was more likely to have arisen from that ejaculation at the time of the alleged attack or from the appellant's account of wiping himself on the cover a few days before the alleged rape.
20. In summing up, the judge accurately described the DNA evidence and then said to the jury that the evidence could not tell them which of the two versions as to the circumstances of deposit was correct. The judge went on to remind the jury that questions had been posed by Miss Young as to whether KC's account as to how the semen had got on to the duvet could be right and whether Mr Ellis had worked on a false premise. The judge remarked to the jury that science could not assist them with that sort of question. Later in the summing-up the judge expanded upon the points made by Miss Young in relation to KC's account and as to the state of the bedding. We have to say that we regard the judge's observation as correct in saying that science could not assist in that respect. Whilst of course the evidence of the expert as to the presence and analysis of DNA material was important, his expertise as to the credibility of disputes or arguments over the state of the bedding would be questionable in the circumstances and he had indeed made clear that the appellant's account was a plausible explanation.
21. It seems to us that, for example, in considering KC's account, it needs to be borne in mind that there will inherently be a variety of uncertainties and variables. This was a violent assault taking place over a period of about twenty-five minutes. The precise dynamics of this are unlikely to have been at the forefront of the victim's mind in giving evidence. While she said that at the start of the attack she was pushed back onto the bed - which had a red blanket covering at least part of the duvet - the jury, as a matter of common sense, would be entitled to consider whether or not that was likely to have remained the position throughout the attack.
22. KC said in evidence was that when she got out of bed to answer the door to the appellant she had moved the red blanket from the top of the duvet. This would have had the effect of largely exposing the duvet during the attack. Moreover, given that KC's evidence was that after the attack she had got back into or onto the bed and remained there for a few minutes, the opportunities for seminal transfer are again obvious. It was no doubt for reasons of that sort that Mr Ellis was cautious about the extent of any conclusion that could be drawn.
23. We are unpersuaded by any suggestion that Mr Ellis was under any material misapprehension or that further examination would have provided any useful evidence as to the precise layout of the bedding during the attack. It seems to us that there is and was of necessity a degree of uncertainty in the situation. It is also relevant that the defence took a considered decision to work within the framework of Mr Ellis's limited evidence which was not unfavourable to the appellant on the topic. It seems to us to have been a tactical forensic decision which we can readily understand.
24. However since the trial the defence have decided to consult Dr Haywood, another DNA expert. We are invited to admit his report pursuant to Section 23 of the Criminal Appeal Act. His report acknowledges that there is uncertainty as to the position of the blanket and the duvet at the time of the attack and that there is no clear description by KC of her position on the bed during intercourse. If the blanket was covering the top of the duvet, Dr Haywood would not have expected such wide transfer of semen on to the duvet's surface. If the blanket and duvet cover were both folded back during intercourse, there was no obvious opportunity for semen to be transferred. Dr Haywood, however, acknowledges that during intercourse the bedding may have been moved and thus further areas of the duvet cover exposed. In other words, he considers that there is a variety of circumstances and imponderables about the state of the bedding. This lack of certainty means that in our view little weight can be attached to this part of Dr Haywood's evidence.
25. As to the appellant's account, Dr Haywood states that if the appellant had a relatively large amount of wet semen on his leg, penis or hand then the findings could be explained in a manner consistent with that. This latter observation seems to us to add nothing to the evidence of Mr Ellis. It seems to us that the other parts of Dr Haywood's report suffer from the difficulties of imprecision which we have already identified. In the circumstances we do not consider that we should receive this report in evidence as the weight to be attached to it is extremely limited. Even if we were to assume in favour of the appellant that expert evidence on this particular topic was admissible, our conclusion is that there is no sufficiently sound basis for it to carry any real weight in this appeal. However we incline to the view that the matters discussed were essentially a matter within the province of the jury's assessment which does not require the need for expert evidence.
26. Moreover we have regard to the decision made by counsel at the time of the trial to rely on the evidence given by Mr Ellis. This, as we have said, seems to us to have been an appropriate tactical decision made for good reason. Miss Young's wish in hindsight that she had proceeded differently does not alter the character of her approach at trial. We also remind ourselves that Section 23 is not to be used as a vehicle for appellants to re-litigate matters which could and should have been dealt with at the trial or to mount an alternative theory after the event or to improve the presentation of their case.
27. For these reasons we have come to the conclusion that it is not in the interests of justice to admit the proposed fresh evidence of Dr Haywood. Accordingly, there being no complaint about the way in which the matter was left to the jury, this first ground of appeal must fail.
28. The second ground of appeal is the conduct of the intermediary. KC's evidence-in-chief started with the playing of her ABE interview. That started before the luncheon adjournment on 21 October. The playing of that evidence took place until mid-afternoon, after which the Crown asked some supplementary questions and the defence cross-examined. It appears that the court remained in session until 5.46 pm on that day.
29. After the luncheon adjournment - and, we understand, the intervention of another case in the judge's list - defence counsel raised a concern with the judge which was that the intermediary had been seated next to KC with her arm around her whilst the ABE video was being played. The judge mentioned that before the luncheon adjournment he could see that KC was extremely distressed as the video was being played, so much so that he had been considering stopping the proceedings. He said that the intermediary had worked hard to keep KC calm. After defence counsel's observation, prosecuting counsel said that she had spoken to the intermediary who had told her that KC did not seem to be able to cope without physical support and so she (the intermediary) had put an arm around KC to give her courage to continue. The judge commented that he had thought that that was probably the case and said that he would give the jury a very full direction about sympathy in due course. Matters were left there. Defence counsel proceeded to cross-examine.
30. We have a full transcript of the proceedings whilst KC was giving her evidence. The intermediary appears to us to have been extremely helpful in facilitating communication. There are at least two occasions on which she can be heard speaking to KC, telling her to take time to breathe when she became upset during the giving of her evidence. At the end of the process the judge thanked the intermediary for having been very helpful.
31. On one occasion during cross-examination the intermediary said to defence counsel that her questioning was "coming over in a little harsh manner and I think to be able to control her [KC] for the rest of the trial it would be helpful if we could just go a little slower and at a different inflection". Miss Young apologised and explained accurately that she was trying to get through matters as quickly as possible. We see nothing untoward in this exchange.
32. In the course of oral submissions to us, Miss Young has described to us what she says took place during the course of her cross-examination, material which is not captured on the transcript which we have. Miss Young told us that during the course of her cross-examination the intermediary appeared to continue to give physical support to KC by permitting KC to lie up against her and by giving her intermittent instructions to breathe in the way in which we have already described.
33. We have invited Mrs May, who was present prosecuting, to give her recollection of what transpired at this stage of the trial. Whilst Mrs May accepted the general description given to us by Miss Young, she did not appear to accept the level of intensity which was communicated by Miss Young to us in court this afternoon.
34. We have seen the Ministry of Justice's Registered Intermediary Procedure Guidance Manual published in February 2012. The task of an intermediary is to facilitate two-way communication between the witness and participants in the trial (paragraph 1.21). The intermediary is to be impartial and neutral. His or her paramount duty is to the court. The intermediary is not a witness supporter (paragraph 1.23). The extent to which an intermediary should intervene during evidence of a witness depends on the witness (paragraph 1.24). Throughout the evidence the intermediary should be in the view of the jury so that their interaction with the witness is clear (paragraph 1.91). The intermediary should conduct his or herself in the manner consistent with their role (paragraph 1.98).
35. Miss Young submits that the intermediary had not conducted herself appropriately. She says that the intermediary's conduct simply went too far. It is clear from the transcript that notwithstanding that assertion Miss Young did not at the time raise the matter afresh with the judge nor did this experienced trial judge intervene at any stage. It does not appear that even after the evidence of the witness had concluded - whether on that date or on any subsequent date - that there was specific complaint about what happened.
36. We do not, however, doubt the general description of events given to us by Miss Young this afternoon of continued comfort being given to the witness during the whole of the witness's evidence. Miss Young submits to us that not only did this conduct go too far but that the judge failed in summing up to deal with the intermediary's conduct in any adequate way. That failure to direct the jury in an adequate manner meant, submitted Miss Young, that the appellant was prejudiced and so that he did not receive a fair trial.
37. The judge directed the jury at the very outset of the summing-up as follows:

"Before we come to look at the individual items of law, I want to deal with a matter that was in fact raised by both counsel during their addresses that is important. It is the issue of sympathy. Now, I am sure as private individuals one would certainly feel sympathy for [KC]. She has been dealt a rough hand, you may think, with her various disabilities that we will be looking at in a moment or two. That is obviously relevant to your judgment of her, but the one thing you must not do is to allow sympathy for her as a person in any way to cloud your judgment of her as a witness. That would be quite wrong. It would not be just, and it would be unfair.

You are going to have to look at various matters concerning her evidence, and we will have a further look at what they are in a short while, but at the moment I am dealing purely with the issue of sympathy. Please put it to one side while you are jurors, because otherwise it gets in the way."

38. At a later point in the summing-up the judge referred back to his direction in speaking of the need to put sympathy to one side.
39. The question for us is as to the adequacy of the direction given in the circumstances which have arisen. We have come to the conclusion that what the judge said was sufficient to meet the circumstances. This jury was well aware of the difficulties under which KC laboured and her distress at times will have been evident to them. We do not consider that the fact she received physical support in the form described will have been particularly surprising or impactful upon the jury. The experienced judge appears to have taken the view that the support given enabled KC to proceed at a time when she was very distressed. Indeed, Miss Young herself has fairly conceded in the course of her submissions that KC had considerable difficulty in progressing through her evidence because of her emotional distress.
40. We think that the relevant consideration for us is not whether the intermediary overstepped the guidance given in what she did as much as whether there was any serious risk of unfairness being caused to this appellant. We do not think that in the circumstances there was any sensible prospect of unfairness. The jury would have understood the situation as a matter of common sense where they were observing a very obviously vulnerable woman.
41. In addition both counsel had addressed the jury on the need for an objective examination of the evidence untrammelled by sympathy, and the judge had reinforced this matter in effective terms in the direction which we have already cited.
42. In those circumstances we are not persuaded that there is anything which could impact upon the safety of these convictions. Accordingly, having concluded that there is no force in either of the two grounds before us, this appeal against conviction must be dismissed.