England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		19th October 2016

1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 11th December 2015 in the Crown Court at Croydon before His Honour Judge Gold QC and a jury this appellant, who is now aged 38 years of age, was convicted of rape. He was sentenced to 9 years' imprisonment with appropriate ancillary orders. He now appeals against conviction by leave of the single judge.
2. A short summary of the facts suffices for this appeal. In August 2013 the complainant, K, was in a relationship with the brother of the appellant. On the evening of 30th August K attended a party in Croydon in company with the appellant and the brother. In the early hours of the following morning the brother took the appellant's car keys and drove his A3 Audi car towards Brixton. K was a passenger.
3. At 5.05 am, the brother was arrested in Brixton on suspicion of driving whilst under the influence of alcohol. As a consequence K had to take a bus back to her home in Croydon. She arrived home at around 6.00 am. Present at the address was a friend who had been babysitting the appellant's children.
4. The prosecution case was that the appellant arrived at the K's address at around 6.30 am, angry upon learning that his car had been impounded. He went inside, pulled out a knife and told K: "That Audi cost me five grand and you're gonna pay for it." The friend then left, leaving the appellant and K alone. The appellant was alleged to have picked a rolling pin from the kitchen and struck K to the arm before telling her: "You're my girl not my brother's". He then was alleged to have vaginally raped her over the kitchen table before leaving. The following day K reported the attack to her father who contacted the police.
5. To prove the case the prosecution relied upon the evidence of K, to the effect that the appellant had threatened and raped her, the evidence of K's father who spoke of recent complaint, the fact that on medical examination K had suffered minor bruising, which it was submitted was consistent with her account, the presence of a rolling pin and knife recovered from the K's address and in particular the fact that the appellant had initially lied in interview and denied having sexual intercourse with K. He was re-interviewed after his semen was found on a high vaginal swab from the complainant whereupon he admitted that sexual intercourse had taken place, asserting it had been consensual. He disputed the timing.
6. In addition the jury heard evidence of the appellant's previous convictions, it being submitted that his previous offences of violence demonstrated a propensity to behave violently and to use weapons. This was on the basis that his propensity to act violently with weapons was an important matter in issue between the parties. Furthermore his antecedent record was deemed admissible due to the nature of his defence which amounted to an attack on K's character.
7. The defence case was that the appellant and K had consensual sexual intercourse earlier that morning having briefly left the party at around 3.00 am and returned to K's house. He gave evidence that it was untrue that he had attended at 6.30 am and he denied the events described by K. He suggested that her injuries were caused by his brother during an argument between her and him, returning to the party at 3.00 am. He also relied upon the fact that there was no evidence from the friend to corroborate K's account that the appellant had attended her home at 6.30am. He contended that the injuries sustained by her as apparent on medical examination were not consistent with her account. That there was no reportable DNA recovered from the tip of the knife or fingerprints on either the knife or the rolling pin. Furthermore, it was suggested that such injuries as K had sustained had been caused by the brother when he and K had argued at the party the night before. It was underlined that he had no sexual offences recorded against him. Furthermore that the jury had heard hearsay evidence concerning the brother's interview under caution in which he stated that he had borrowed the appellant's car to take K to hospital. This was relied upon by the appellant as potentially undermining the credibility of K's account and to support his contention that the injuries were caused by his brother. That hearsay account was admitted with the consent of the Crown who did not of course admit its truth.
8. The issue for the jury was which of these accounts was accurate or, more particularly, whether they were satisfied so that they were sure that K had not consented to vaginal sexual intercourse with the appellant.
9. It is unnecessary to rehearse the evidence in the case because the grounds of appeal turn upon two rulings as to admissibility and as to the directions given to the jury. The first challenge made by Mr Wood as to the way in which the trial was conducted concerned the application which he made to cross-examine K in relation to what he asserted was an ongoing sexual relationship between him and her. Mr Wood argued that, if accepted as true, the appellant's evidence demonstrated a consistent history of consensual sexual behaviour between K and the appellant following the consumption of drugs or alcohol in her house at her invitation and after being with the appellant at a party in someone else's house. The trial judge decided that this submission went nowhere near conduct of sufficient similarity to provide for admissibility within the meaning of section 41 of the Youth Justice and Criminal Evidence Act 1999 and that in any event the safety of his conviction would not be imperilled by the refusal of leave.
10. The principles engaged by section 41 can be summarised briefly. It is accurate that striking similarity is not required: see R v A (No 2) [2001] UKHL 25, at paragraph 133. There must be relevant similarity between the previous and current alleged conduct which necessitates an exploration of the circumstances so as to avoid unfairness to the appellant: see R v MM [2011] EWCA Crim 1291 at 48. Third, if it would be tantamount to saying that the complainant was a person who was engaged in casual sex in the past and therefore would have been likely to do so on the occasion that the complainant was with the appellant, that cross-examination will not be allowed (R v Harris [2009] EWCA Crim 434 at 17), that the principal purpose of cross-examination must not be to impugn credibility (Harris, at paragraph 20), but must be truly probative to the issue of continuity (R v Hamadi [2007] EWCA Crim 3048). Furthermore, there must be a sufficient chronological nexus between the events to render the previous behaviour probative (see MM at paragraph 48). Finally, there is the exercise of judgment in connection with the application.
11. It is an exercise of judgment whether or not to permit leave and its exercise demonstrates the height of threshold in section 41(3)(c) of the Act: Hamadi (paragraph 23). In that case, this court found that the following similarities could reasonably be described as mere coincidence falling short of a threshold in subsection (c). These were that the complainant herself instigated sexual activity, that the activities took place outside in relatively public places in winter and while the complainant was involved in a relationship with her boyfriend.
12. In the instant case we do not accept that the appellant has put forward any sufficient factors or combination of factors that satisfy this high threshold. Any similarity between previous sexual encounters between the appellant and the complainant can be described as part of the background or mere coincidence. Furthermore, in MM the complainant engaged in sexual behaviour with the defendant on two earlier occasions 4 months and 3 months before the time of the allegation. This court held that the trial judge was correct to reject the defendant's submission that these facts met the high threshold in section 41(3)(c). In the instant case the first time the appellant alleges consensual intercourse took place was about a year before the act complained of and the second time several weeks afterwards. In both MM and the instant case therefore there was no sufficient chronological nexus between the events to the alleged events to render the behaviour probative. It follows that cross-examination on this issue was not and would not have been truly probative. For these reasons, in our judgment, the judge was entitled to reach the conclusion that he did and this ground of appeal fails.
13. The second ground of appeal concerns the application to adduce the appellant's previous convictions pursuant to section 101(1)(d) and (g) of the Criminal Justice Act 2003. In relation to subsection (d) the prosecution argued that the appellant's antecedent record was capable of demonstrating propensity to commit offences of violence, that being an important matter in issue. In relation to subsection (d) the appellant had attacked the character of the complainant.
14. The judged ruled that the question of violence leading up to the alleged rape was an important matter in issue between the parties. The three previous convictions for violence that the prosecution sought to adduce were relevant to that issue and therefore admissible under subsection (d). It is not suggested that this ruling was wrong. The trial judge also ruled the defendant's entire character was capable of being adduced under (g). Again, that could not be challenged because the defendant had alleged the complainant had invented the incident and its surrounding circumstances thereby mounting to an attack on her character. In order to avoid undue prejudice however the learned judge fairly ruled that offences relating to driving and dishonesty would not be admitted. The appellant was correct not to take issue with the ruling that his convictions would go before the jury under subsection (g). The appellant was also correct not to take issue with the trial judge's ruling that subsection (d) was not limited to propensity to commit offences of the type charged. The use of violence to enter the complainant's house was an important matter in issue. The appellant's convictions for affray, assault occasioning actual bodily harm, possession of an offensive weapon, battery and using violence to enter premises and criminal damage were relevant and admissible in respect of the matter in issue.
15. It is on the basis of subsection (d) that the appellant raises a complaint. In particular, the challenge concerned the issue whether the appellant's previous convictions demonstrated a propensity to use weapons. The trial judge directed the jury that the convictions which could establish a propensity to use weapons were affray and assault occasioning actual bodily harm in 1996, affray and possession of offensive weapon in 2006 and battery using violence to enter premises and criminal damage in 2010.
16. The appellant argues that the learned trial judge was wrong to direct the jury that the 2006 conviction for affray and possession of an offensive weapon could demonstrate a propensity to possess a bladed weapon.
17. The law has been set out in R v M [2006] EWCA Crim 3408, at 16 per Keene LJ in these terms:

"There may be cases where the factual circumstances of just one conviction, even as long ago as 20 years earlier, might be relevant to showing propensity, but we would expect such cases to be rare and to be ones where the earlier conviction showed some very special and distinctive feature, such as a predilection on the part of the defendant for a highly unusual form of sexual activity, or some arcane or highly specialised knowledge relevant to the present offence. In cases with less distinctive features in common, one would require some evidence of the propensity manifesting itself during the intervening period in order to render the earlier evidence admissible as evidence of a continuing propensity."

18. In this case the appellant rightly accepted that it is arguable a propensity to violence was established. The direction does not, however, direct the jury to conclude a knife was likely to be handled because of propensity to use weapons but rather was a direction which, taken as a whole, was concerned with a propensity to violence in general. This is demonstrated by the language which he used to introduce the appellant's propensity in these terms:

"Let me turn to deal with the question of the defendant's bad character, because you have heard evidence that he has convictions for offences of violence and other matters. The reason that you have heard about those convictions is because they may be relevant to whether he has what we call a propensity or a tendency to behave in a violent or intimidating manner, similar possibly to how he is alleged he behaved towards [K] in the moments leading up to the incident with which you are concerned."

There is no reference in the learned judge's summing-up to bladed weapons. His reference to "weapons" is in two sentences:

"The prosecution's counter argument is that his propensity for violence and the fact that he has been in possession of weapons in the past is relevant to whether this was consensual sex, as he asserts, or rape."

The second reference to weapons in the learned judge's summing-up was in these terms:

"Please listen carefully to the arguments that are made on both sides - I am sure you will - and decide whether the prosecution have made you sure that he has a propensity to be violent and possess weapons at the relevant time."

20. The concern placed before the court is that there was no independent evidence of the appellant's presence in the complainant's house at 6.30 am or later on 31st August and that there was therefore an absence of supporting evidence for the complainant's contention that the appellant used a knife. This was addressed by the learned judge in these terms:

"Please bear in mind that this evidence of the defendant's previous behaviour is but a small part of the whole evidence in this case. You will appreciate that it is not direct evidence he committed the offence, but evidence of circumstances concerning him himself which you are entitled to take into account when deciding whether he was behaving violently before penetrating her vagina."

21. In our judgment, the learned judge was perfectly entitled to approach the issue in this way. There is nothing in his summing-up which can be criticised and certainly nothing which demonstrates that his conviction is unsafe.
22. The third ground of appeal concerns the way in which the learned judge approached the evidence of the appellant's brother as hearsay and directed the jury effectively that very little weight should be attached to it. Mr Wood argues that that direction was seriously unfair, although he accepts that a hearsay warning was unobjectionable in principle.
23. In this regard, it is important to bear in mind how the learned judge approached the issue of the brother in his summing-up. This was a split summing-up where the learned judge gave the jury his directions as to law before final speeches. At that stage what he said about the brother was as follows:

"Well, now, the brother ... has not given evidence here. So what he had to say in his interview has not been given on oath. It has not been tested in evidence. We do not even know whether [he] would have said that it was a true account or an untrue account. So it is of frankly very little probative value at all. I am not quite sure what use is going been made of it in the course of closing addresses by counsel. But when you are considering whether or not you attach any weight to the evidence that there is of that conversation that he had with the police following his arrest, bear in mind that it has not been tested in evidence and he has not given evidence to support it on oath before you in this courtroom."

The learned judge could have added that at the time the brother was being interviewed under caution and had interests of his own to serve.

24. There then followed closing speeches, during the course of which the course of which Mr Wood has explained that he addressed the jury at length and placed considerable weight on what the brother had said, not least because it was his contention that it undermined aspects of the complainant's evidence.
25. As a result the learned judge returned to the topic when he reminded the jury of what the brother had said in his interview with the police after his arrest. He went on:

"It has very little value, ladies and gentlemen, for the reasons I explained when I was giving my directions to the law. It is hearsay evidence. The brother has not given evidence here... He could have done, but he has not. You should not speculate as to why it has not been called in evidence before you.

There is no property in a witness, ladies and gentlemen. Both sides are entitled to investigate a case. Both sides are entitled to call such witnesses as they think fit. With the greatest respect to Mr Wood, having emphasised the importance of your not speculating following my direction to you, as a matter of law, that you should not speculate, a certain amount of time was spent dealing with the evidence of witnesses from who you might have heard but have not heard. It does not matter, ladies and gentlemen. You try this case on the evidence that you have heard."

The learned judge had made it abundantly clear that the weight that they attached to evidence was a matter for them and that was a direction which he repeated.

26. In our judgment, it is beyond argument that the issue was left to the jury and the judge was entitled to underline that this was hearsay evidence and untested; he was entitled to express the view that little weight should be attached to it. There is nothing in this complaint either.
27. In the circumstances this appeal is dismissed.