England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Peterborough Crown Court
His Honour Judge Nicholas Madge
T20137051

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/03/2015

Lord Justice Pitchford :

The appeal

1. In the appellant's first trial the jury was unable to agree upon a verdict. On 22 January 2014, following his retrial before His Honour Judge Madge at Peterborough Crown Court, the appellant was convicted of an offence of rape contrary to section 1 (1) of the Sexual Offences Act 2003. He was sentenced to six years imprisonment and the judge made a restraining order.
2. On 2 December 2014 the full court (Treacy LJ, Popplewell and Stewart JJ) granted an extension of time and leave to pursue a single ground of appeal, namely that the trial judge wrongly declined to admit before the jury evidence of the complainant's bad character.
3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these proceedings and in order to protect the complainant's anonymity we shall refer to her in this judgment either as "the complainant" or as "N".

The evidence

4. On Wednesday 7 November 2012, the complainant, who was then age 18 years, attended a house party in Peterborough at the home of a man called Majeed. Also present was the appellant who had been known to the complainant for some weeks. At about 7am on Thursday, November 2012, N went upstairs to go to sleep. She was drunk and needed assistance from a male friend called Ali. They both fell asleep on the same bed. N gave evidence that when she woke she found the appellant on top of her penetrating her vagina with his penis. He had completely removed two pairs of leggings from one of her legs and her underwear that she found on the floor. She protested and resisted forcefully but the appellant continued regardless. Eventually, N managed to struggle free, dressed and went downstairs. She immediately reported to her friend, Holly, that she had been raped by the appellant. Shortly afterwards she went outside, flagged down a passing police car and repeated her complaint. Holly gave evidence that she had seen N and Ali go upstairs together. She knew Ali had to get up early for work. Ali confirmed, in his evidence, that he asked the appellant to wake him up. The appellant woke him at about 8 am. He went off to work. Before he left, the appellant asked N if he could sleep next to her and N agreed. Holly said that later N and the appellant came downstairs. She could not remember in which order. N made a complaint to her that the appellant had raped her. Her eyes were welling with tears. Police officers confirmed that at 9.35 am they were stopped by the complainant who made a complaint of rape. She was upset and had been crying. She gave an account that was consistent with her later video recorded evidence and while doing so she was shaking and crying. The appellant was arrested at 9.45 am. He said that he had done nothing wrong. When interviewed on two occasions, before and after the receipt of the forensic science evidence, he made no comment.
5. The appellant gave evidence. He said that the party met up at a guest house. He and the complainant had argued the week before and they made up. During the evening N asked him to lend her money to buy drugs but he declined. Later they went to Majeed's house to continue the party. The appellant agreed that Ali asked him to wake him in the morning. At about 8 am the appellant went to the bedroom. The door was locked but the appellant returned after 15 minutes and it was open. Inside the bedroom the complainant was sitting up and Ali said he was going. The appellant said he returned to his own bed and went to sleep. He awoke to find that the complaint's hand was inside his jeans. He felt something wet on his penis. He just turned away from her. Later they went downstairs. Majeed was angry that they had been in his room. It was only then that the complainant appeared to be upset. At no time did he have sexual intercourse with the complainant.

The complainant's bad character

6. At the commencement of trial Mr Corre applied for leave to cross-examine the complainant about her previous convictions. The appellant did not seek to rely upon the facts of any of the offences, to all of which the complainant had pleaded guilty, but he sought to introduce the fact of all the convictions for the purpose of undermining the complainant's general credit as a witness.
7. The complainant was born in September 1994. She first appeared in the juvenile court in June 2009 at the age of 14 when she pleaded guilty to an offence of robbery and an offence of assault by beating. On the date of sentence, 11 August 2009, she asked for a further offence of robbery to be taken into consideration. The complainant was made the subject of a referral order for 12 months. She failed to keep to the terms of the order, pleading guilty later in the year to offences of driving a vehicle taken without consent, shoplifting and battery and she was sentenced to a detention and training order for 6 months. In 2010 the complainant pleaded guilty to further offences of battery, burglary, robbery and taking a motor vehicle without consent. She was sentenced to a youth rehabilitation order to which she remained subject in 2011 when she pleaded guilty to an offence of dangerous driving. Finally, in December 2012 she pleaded guilty to battery and received a suspended sentence order.

Section 100 Criminal Justice Act 2003

8. Section 100 of the Criminal Justice Act 2003 applied to the appellant's application. The relevant parts of section 100 are as follows:

"(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –

(a) …

(b) It has substantial probative value in relation to a matter which –

(i) is a matter in issue in the proceedings and

(ii) is of substantial importance in the context of the case as a whole, or

(c) …

(2) …

(3) In assessing the probative value of evidence for the purposes of sub section (1)(b) the court must have regard to the following factors (and to any others considered relevant) -

(a) the nature and number of events, or other things, to which the evidence relies;

(b) when those events or things are alleged to have happened or existed;

(c) where –

(i) The evidence is evidence of a person's misconduct, and

(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,

the nature and extent of the similarities and the dissimilarities between each of the alleged incidences of misconduct;

(d) …

(4) …"

9. It was not being suggested to the judge that the complainant had behaved on the occasion of the alleged rape in a way similar to previous misconduct so as to engage section 100 (3)(c). It was being contended that the complainant's repetitive criminal misconduct on earlier occasions went to the issue whether she was a person whose accusation against the appellant was worthy of belief.
10. Section 100 (1)(b) provided the threshold for admissibility. There were two essential questions to be considered by the trial judge: (1) whether the evidence had substantial probative value in relation to a matter in issue in the proceedings and (2) whether the matter in issue was of substantial importance in the context of the case as a whole. The natural sequence in which to consider those questions is first to identify the matter in issue and its importance in the context of the trial as a whole and, second, to assess the probative value of the evidence upon that issue.
11. In Stephenson [2006] EWCA Crim 2325 (Hughes LJ, Mackay and Treacy JJ) this court held that the creditworthiness of a witness is capable of being a matter in issue of substantial importance in the context of the case as a whole. In that case the complainant made an allegation of sexual misconduct. The defence wished to cross-examine the complainant about two cautions and a conviction acquired some eight years before in respect of offences of receiving stolen goods and shoplifting. The trial judge declined to permit cross-examination under section 100 on the ground that the offences of dishonesty did not establish any tendency for untruthfulness. At paragraph 27 of his judgment, delivered on behalf of the court, Hughes LJ said:

"27 … It does not follow … that previous convictions which do not involve either making of false statements or the giving of false evidence are incapable of having substantial probative value in relation to the credibility of a non defendant under section 100, or for that matter of a co-accused where the application is made by him under section 101 (1)(e). It is … fully rational that the same degree of caution which is applied to a crown application when considering relevance and discretion does not fall to be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. Accordingly (although he cannot be blamed for it), the trial judge misdirected himself in directly applying paragraph 13 of Hanson into the situation which was before him. It may be, therefore, that had he addressed the question without believing himself fettered in that way, he might have come to the conclusion that these three incidents were capable of having substantial probative value in relation to the truthfulness of the defendant, which was an important matter in issue in this case. Whether he would or not would have been a matter for the feel of the case and for him at the time. Whether he would or not, we are satisfied that, had those matters been known to the jury, they could not in this case have made any significant difference."

12. On the previous day the same constitution of the court had considered a similar issue that arose under section 101 (1)(e) of the 2003 Act: Lawson [2006] EWCA Crim 2572. At paragraph 34 of his judgment Hughes LJ said:

"34 … A defendant who is defending himself against the evidence of a person whose history of criminal behaviour or other misconduct is such as to be capable of showing him to be unscrupulous and/or otherwise unreliable should be enabled to present that history before the jury for its evaluation of the evidence of the witness. Such suggested unreliability may be capable of being shown by conduct which does not involve an offence of untruthfulness; it may be capable of being shown by widely differing conduct, ranging from large scale drug or people trafficking via house breaking to criminal violence. Whether in a particular case it is in fact capable of having substantial probative value in relation to the witness's reliability is for the trial judge to determine on all the facts of the case."

13. This approach to the issue of the probative value of previous misconduct in the assessment of a witness's credit was followed in Brewster and Cromwell [2010] EWCA Crim 1194, [2010] 2CR App R 20 (Pitchford LJ, Maddison and Macduff JJ). The court held that the question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair minded tribunal upon the issue of the witness's creditworthiness. At paragraph 23 of a judgment given on behalf of the court Pitchford LJ said at paragraph 23 :

"The first question for the trial judge under section 100 (1)(b) is whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole. This is a significant hurdle. Just because a witness has convictions does not mean that the opposing party is entitled to attack the witness's credibility. If it is shown that creditworthiness is an issue of substantial importance, the second question is whether the bad character relied upon is of substantial probative value in relation to that issue. Whether convictions have persuasive value on the issue of creditworthiness will, it seems to us, depend principally on the nature, number and age of the convictions. However, we do not consider that the conviction must, in order to qualify for admission in evidence, demonstrate any tendency towards dishonesty or untruthfulness. The question is whether a fair-minded tribunal would regard them as affecting the worth of the witness's evidence."

14. At paragraph 12 of Braithwaite [2010] EWCA Crim 1082 the Vice President, Hughes LJ, emphasised that the assessment whether the bad character evidence is of substantial probative value in relation to an issue of substantial importance in the case as a whole is "highly fact-sensitive in each case". This was the approach adopted by the court in a section 101 (1)(e) case, Phillips [2011] EWCA Crim 2935 at paragraph 44 in which Pitchford LJ said:

"44 … What evidence is of substantial probative value should be judged in a fact-sensitive manner in the context of the trial as it appears at the time the application is made."

The judge's ruling

15. In his ruling given on 20 January 2014 His Honour Judge Madge accepted that the complainant's creditworthiness was a matter of substantial importance in the trial. On the other hand, he ruled that the defence was not suggesting that the complainant had concocted the allegation of rape. It was suggested, he said, that the complainant was "mistaken" in her assertion that there had been penetration of the complainant by the defendant's penis while she was asleep. The judge concluded that the complainant's previous convictions were not of substantial probative value on the question of her creditworthiness on this narrow issue.
16. Mr Corre submits that the learned judge misconstrued the defence case which was that the complainant was not telling the truth about the incident. He contends that her convictions were of substantial probative value on the question whether her evidence was worthy of belief, although it is conceded that they demonstrated no propensity for untruthfulness.

The defence statement

17. Before reaching a conclusion whether the judge was right to rule as he did, it is necessary to consider other features of the evidence.
18. On 28 January 2013 analysts found that a mixture of the DNA of the appellant and the complainant was present on swabs taken from the appellant's pubic area. The complainant's DNA was found on the inside of his boxer shorts which also tested positive for semen. In the opinion of the forensic scientist these laboratory findings were what might be expected if sexual intercourse had taken place between the appellant and the complainant. The complainant's DNA would have transferred to the appellant's penis and then to the inside of his boxer shorts.
19. Until this point in the proceedings the appellant had given no account to the police as to what had taken place. However, at the adjourned plea and case management hearing a defence statement was served on the court and the prosecution. In its relevant parts it read:

"Nature of the defence

2 The nature of his defence is that the defendant did not intentionally penetrate the vagina of [N] with his penis.

Matters of fact on which he takes issue

3 Accordingly he takes issue with the prosecution on the allegations that he intentionally penetrated [N's] vagina with his penis because that allegation is false.

Matters of fact on which he relies for the purposes of his defence

4 On the date in question, when in the company of [N] she acted flirtatiously towards him and asked to borrow money from him to purchase cocaine, which he declined to do.

5 There came a point when the defendant went to bed, alone, in a bedroom in the premises intending to sleep. Sometime after he did so, and whilst he was asleep, [N] got into bed with him, without any invitation or acquiescence on his part. When he awoke to find her in bed with him she again acted flirtatiously towards him and asked if he wanted to have sexual relationships with her, which he declined. She nevertheless unfastened his trouser and masturbated his penis. He further felt something wet upon his penis. It is possible that he ejaculated as a result, but he was extremely tired and sleepy and was semiconscious at this time."

20. On receipt of this statement the prosecution sought a further opinion from the forensic scientist. In a statement on 2 October 2013 she concluded that her findings were also what she would expect if the complainant had masturbated the appellant or performed oral sex on him. Transference could have taken place so as to produce the result found. The forensic evidence was the subject of written agreement at trial.
21. Also agreed at trial was evidence of a medical examination of the complainant following her complaint during which it was found that her inner thigh was tender to touch and that a 1.5 centimetre bruise was present on the outer left thigh. No injuries were found on the vagina or vulva but when a vaginal examination was attempted with a speculum the complainant experienced soreness and she could not tolerate full opening.

Discussion

22. It can be seen that there was a stark clash in the cases being advanced by the prosecution and the defence respectively. While it is true that the central issue was whether sexual intercourse had taken place, there was a gulf between the prosecution and the defence as to the surrounding circumstances including (1) whether the complainant was in a drunken sleep when the appellant removed her clothing and commenced sexual intercourse, (2) when the complainant woke up, protested, struggled and fought him off, or (3) whether, on the contrary, a sexual advance was made by the complainant towards the appellant and (4) she masturbated him to ejaculation. The only common ground appears to have been that both were in a bedroom upstairs in the house and that some act of sexual intimacy took place between them. We cannot agree with the learned judge that the scope of the issue of the complainant's creditworthiness was as narrow as he described it. Mr Corre conceded before the full court when making his application for leave that he had not spelled out to the judge the full effect of the defence case but made it clear that the credit of the witness in making the allegation of rape was a central issue. Notwithstanding the misdescription of the issue, the judge correctly, in our view, identified that credit was a matter of substantial importance in the context of the case as a whole.
23. The second question for the judge was whether the complainant's previous convictions were of substantial probative value on the issue of credit as we have described it. In Phillips at paragraph 13 the court concluded that the term "substantial probative value" must mean that the bad character evidence has an enhanced quality of proving or disproving a matter in issue. In our judgment that assessment must be considered not as a generalised and hypothetical question but specifically within its practical and fact sensitive context.
24. The issue of credit that arose in the present case was as to the 'worth' of the complainant's assertions that the appellant had sexual intercourse without her consent; that she did not make sexual advances to the appellant and sexually assault him by masturbating him to ejaculation. It is necessary for this court to consider the circumstances as they were at the time the defence application was made and not as they would have appeared after all the other evidence in the case had been adduced. We are persuaded that, having correctly ruled that the complainant's general creditworthiness was central to the case, the judge should also have ruled that the convictions were so numerous, varied and recent that they were of substantial probative value upon the issue of whether her accusation against the appellant was worthy of belief. It was for the jury to judge whether in the particular factual context of the present case her general bad character was of any assistance to them in resolving who was telling the truth.
25. We have therefore considered whether the safety of the verdict may have been affected by the exclusion of N's bad character from the evidence. In our judgment, the bad character on which the appellant relied paled in significance beside a careful examination of the evidence that emerged: of the complainant and appellant respectively, the evidence of other occupants in the house at the time of the complaint, the scientific and medical evidence and the evidence of the police officers to whom the complaint and the complainant's first account were given. That evidence described a specific context within which the worth of N's evidence was to be assessed, namely sexual activity between two people after a drunken party. For reasons which follow, we consider that the jury would have been quite unable to conclude that the frequency and nature of the complainant's misbehaviour in the past provided any ground for rejecting her present complaint against the appellant. Our first observation is that there was nothing about those convictions that established even a tangential connection to the facts of the present case.
26. The appellant chose to make no response to the evidence put to him in interview. He waited until the forensic evidence was available before putting forward an account in his defence statement, which he repeated with notable inconsistencies in the course of his evidence. It was, in our view, the inconsistency between the defence statement and the evidence given by the appellant that exposed the weakness in the assertions he made. There was a powerful prosecution argument that the appellant had held back from giving an account of the incident until the scientific evidence was to hand in order to adjust his case accordingly; having adjusted it, falsely, he had difficulty in giving a consistent account.
27. In the course of his evidence the appellant denied that N had been flirting with him. Later, he alleged that she was. In his evidence in chief the appellant said that he awoke to find N next to him with her hand on his penis; he did not say or do anything but turned over. In cross-examination, when reminded of what he had said in his defence statement, he alleged that N had asked him to fuck her. He had responded, "In a bit". In his evidence the appellant said that his trousers remained fastened. On being reminded of the defence statement the appellant said that N had unfastened them. The appellant could not explain how the complainant may have suffered bruising and soreness. Downstairs, although he was in the presence of Holly and the complainant, he claimed not to have heard any complaint of rape.
28. The complainant suffered minor injuries that were consistent with her account but not with the appellant's. She was seen immediately afterwards to be in a state of distress. She gave a consistent account and submitted to an intimate examination. The complainant's account was given well before the scientific evidence was available and was consistent with it. We have no doubt that had the jury been informed of the complainant's previous criminal convictions they can have had no significant impact on the specific issues of credit that arose in the case. The complainant was demonstrably truthful on those issues and the appellant was not.
29. In our judgment the verdict was safe and the appeal is dismissed.