England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		28 June 2018

1. LORD JUSTICE DAVIS: The issue on this appeal, for which leave has been granted by the Full Court, is whether the appellant's conviction on a count of rape is unsafe by reason of the trial judge's refusal to discharge the jury and his decision to continue with the trial.
2. The application to discharge as made at the time had been prompted by very, very late disclosure by the police: in fact during the cross-examination of the complainant. Such disclosure showed that certain questions which had previously been put to the complainant in the early stages of cross-examination by counsel then appearing for the appellant had been, entirely unbeknown to counsel, put on an incorrect basis. What is said is that in those circumstances the only proper course for the judge to have taken was for the jury to be discharged.
3. The background is this. The appellant is a man now aged 40. He was convicted on 12 January 2017 in the Crown Court at Wood Green, after a trial before His Honour Judge Perrins and a jury, of one count of rape. He was acquitted on a second count of rape contained on the indictment. In due course he had been sentenced to 9 years' imprisonment and also made subject to a restraining order.
4. The appellant had married the complainant, who may be called "E", in Ghana in 2003. E came to the United Kingdom in 2004. They had three children: a daughter born in 2005; a son born in 2006; and a second daughter born in 2010. On 21 March 2015 police had been called to the matrimonial home in Edmonton because it had been alleged by E that the appellant had physically assaulted her. The appellant was arrested and taken away from the house.
5. When interviewed he gave "no comment" but, in the event, subsequently pleaded guilty to a count of assault occasioning actual bodily harm on a particular basis. However, on the prosecution case, after the police had arrived on that particular occasion and asked questions of E, she then alleged that she had previously been raped by the appellant. The first occasion to which she referred took place in 2010, when her youngest daughter was just a few weeks old. According to her, the appellant had said that he wanted to have sex with her and, when she refused, he went to the kitchen and got a kitchen knife and threatened to kill her if she did not have sex with him, so she submitted to sex against her will. This allegation was to form count 1 on the subsequent indictment and on that particular count the jury acquitted.
6. However, the complainant, E, had also told the police about a second incident of rape which she said had taken place in 2013 when, according to her, he threatened to burn her face with an iron if she did not submit to sex. She therefore submitted because she was frightened that he would do that if she continued to refuse. It was that matter which was the subject of the count of rape of which the jury convicted the appellant.
7. E had also told the police that physical and sexual abuse had occurred when the appellant had been drinking. In due course the complainant gave an Achieving Best Evidence interview and that was subsequently played at the trial as her evidence in-chief. Much of that interview related to the alleged rape involving the knife but other parts related to the alleged rape involving the iron.
8. Among other things, in the course of that interview, the complainant had said this:

"He said like 'if you don't stop being stupid I am going to hurt you' and when I raise up my head he had plugged the iron and he took the iron and said 'get up or I'll burn your face, I'll burn your face so no man will have any interest in you' in our language and I said: 'Robert why do you want to do this? Why do you want to do this? But before that, before this incident, I phoned the police because he started struggling with me in his room. That's why I went to the other room. I phoned the police.

Q. The same evening?

A. Yes I phoned the police..."

The answer then continued in some detail about what had been discussed between her and the police on the telephone and why the police said they were unable to come round at that particular time.

9. There was also evidence from E that the following day, after this alleged incident involving the rape and the iron, she had rung her own brother in Ghana who in turn contacted the appellant's brother. E later spoke to the appellant's brother and told him that the appellant had raped her. The brother said that he was going to speak to the appellant. The appellant said that he was very sorry for what he had done. Furthermore, following the alleged incident with the iron, the complainant, E, said that she had told her employer, Jane, what had happened and the police in due course were summoned. It may be noted that Jane did not herself give evidence at trial.
10. When the police attended during the following day, amongst other things, a series of questions were put to the complainant to assess her safety. Among other things, according to a document made by the police at the time, in answer to the question: "Are you afraid of what they might do to you or anyone else?" she had answered "No". In answer to another question: "Is there any person that has threatened you or you're afraid of?" she had said "No". As to a further question: "Do they say or do things of a sexual nature that makes you feel bad or that physically hurts you or someone else?" she had said: "No". In answer to yet a further question: "Do they use weapons or objects to hurt you?" she had answered "No".
11. An amount of disclosure had been given to the defence prior to trial including, amongst other things, the report containing the questions and answers just summarised.
12. The trial proceeded, counsel then appearing for the appellant (not Ms Arshad who appears on his behalf today) having first checked that there was no further disclosure due to be made by the prosecution and having been told there was none. The trial having commenced and the complainant's evidence in chief having taken place, cross-examination then commenced.
13. During the course of the initial questioning, counsel for the appellant then appearing asked questions, understandably, about the answers she had given to the police in connection with the safety report. Amongst other things, she was asked about her answer to the question: "Does he use weapons or objects to hurt you?" and her answer to that being "No". When that was put to her E in her cross-examination she said this:

"I can't remember saying 'No' because I've already mentioned the hot iron."

The response of counsel to that was:

"... just one second; let's get to the end of the questions."

and further questions were then asked about her then answers in the safety report.

14. Counsel then turned to questions about what had been said to the police in the ABE interview, and this question was asked:

"... what you told the police officer on the video... was that the night when this incident with the iron happened, just before it happened you'd rung the police?

A: Yes.

Q: Well, the officer can deal with that but there's no record of ringing the police that night.

A: I did."

15. Pausing there, on the disclosure thus far made to the defence, there had indeed been no record of the complainant ringing the police that night, shortly before the alleged rape. Then questions were asked about what E had told the police when they came round the following day. The question was put as follows after Jane had been contacted:

"Q: Yes, therefore the police were there. Whether you wanted Mr Arthur to be spoken to or not, you were telling them what happened the night before. That's the whole purpose of Jane phoning the police, wasn't it?

A: Yes.

Q: And at no stage did you tell them, I'm afraid... that he come at you with a hot iron and he had raped you, did you?

A. I'm sure I told the police."

Then she was questioned about why she had not reported the rape after she had told Jane about it and she said, amongst other things, that she was scared and in due course was later also to say that he subsequently had apologised.

16. The cross-examination then concluded at around 4.10 with a number of further questions still clearly needing to be asked the following day. As we gather Ms Merrick, counsel then appearing for the prosecution and appearing before us today, had been struck by the adamant answers of the complainant about having told the police of the hot iron. Accordingly she asked that evening the officer in the case to check again whether or not there were in fact more police records about this. The officer in the case did so check. He then discovered some reports which had been archived 6 months after the incident. Those reports were undoubtedly relevant. It is accepted all round that they should have been disclosed to the defence long before trial. But there had clearly been a complete blunder, through absolutely no fault of the defence at all.
17. Amongst other things, there were two reports of the particular incidents at the time, the first of which confirmed that the complainant had indeed rung the police at around 1.19 am in the morning, shortly before the alleged rape involving the threat of the use of the iron. So the complainant's evidence on this, which had also been given in her ABE interview, was in fact correct.
18. But a further report was revealed relating to what she had told police during the following day and that report revealed, amongst other things, that she had told the police about the appellant having threatened her with a hot iron, albeit she had not made any allegation of rape. It thus follows that counsel for the appellant appearing at trial had, wholly mistakenly, and absolutely through no fault of her own, cross-examined on an incorrect basis in so far as it had been stated that she had never made any mention about the hot iron and further, in so far as it is suggested, that she had not made a telephone call to the police at 1.19 am. In this regard it may be noted that counsel for the appellant then appearing had not, in fact, positively put to the complainant that she had never spoken to the police at 1.19. All that was said and Ms Merrick would say quite deliberately so, was that there was no record of it. It was the position of the prosecution throughout that the defendant had known all along about that particular telephone call as in part it took place in his presence.
19. At all events when this later disclosure emerged and was provided to counsel for the appellant at trial the following morning, there inevitably was detailed discussion. Counsel for the appellant then appearing was very unhappy with this unwarranted late disclosure. She took the view that she had conducted the cross-examination, in part, on an incorrect basis, and that this would have redounded against the interests of her client. Accordingly she applied for the jury to be discharged. This application was opposed by the prosecution.
20. The judge heard submissions, obviously in the absence of the jury, and ultimately gave his ruling during the course of that morning. Amongst other things he said this:

"I think it goes without saying that this is a situation that should never have arisen and prosecution counsel has very properly conceded that it is a failing on the part of the prosecution, it is absolutely no fault of the defence, and it's certainly no fault of defence counsel who cross-examined yesterday on a basis that she thought was correct at the time of asking questions. However, the position is that we are currently halfway through this victim's evidence in a case where the allegation goes back quite some time. I am also told that there are family proceedings on hold pending the outcome of this particular trial.

Having considered the matter with submissions that are made, in all the circumstances I do not consider that the fairness of proceedings had been sufficiently compromised to justify discharging the jury at this stage. It seems to me that the appropriate course is for the position to be corrected in the presence of the jury and the witness, and for the jury to be told in clear terms how the confusion arose; in particular it should be made clear that it is absolutely no fault of the defence that the questions are asked in the way that they were but that it comes as a result of late disclosure on the part of the prosecution and I will leave it to the parties to decide how they want to deal with that particular issue, but the application to discharge the jury is refused."

21. As we were told, counsel then discussed the appropriate form of wording that should be used in explaining the matter to the jury. The jury were then summoned back to court. As we gather Ms Merrick then addressed them, making it quite clear that the fault in disclosure rested solely with the prosecution and was no fault on the part of the defence at all and we gather the judge lent his endorsement to that indicating, amongst other things, that it was not in any way to be held against the defendant and, as we gather, the position was put in clear and robust terms. We put it like that because we ourselves have not seen a transcript of that particular aspect of the proceedings: but that is what Ms Merrick has assured us has happened and, has not been disputed, at all events in the written grounds originally provided by counsel who appeared at trial.
22. The cross-examination of the complainant then continued. Amongst other things, it was understandably put to the complainant that, whilst she may indeed have mentioned the hot iron to the police, she had not made any mention to them of having been raped, as the report had itself shown. Thereafter the evidence concluded. The judge summed-up in a way which is accepted to be entirely fair, balanced and accurate; and the jury acquitted on count 1 and convicted on count 2. Although one original ground of appeal was that the verdicts were inconsistent, that, understandably, has not been pursued.
23. The argument of Ms Arshad, on behalf of the appellant, is quite simply that the only proper course, given the situation which had arisen and which was absolutely no fault of the defence, was to discharge the jury. Ms Arshad said that in effect there had been an ambush, even if not a deliberate one. She submits that the defence had been irremediably prejudiced as a result of what happened. She says that counsel then appearing for the appellant would undoubtedly have cross-examined in a somewhat different way and certainly would not have put to the complainant that she had not had the conversation at 1.19, or used questioning to suggest that, and would not have put to the complainant that she had not told the police about the hot iron at the time.
24. She submits further, that the way matters emerged in effect operated to bolster the credibility of the complainant and indeed may have given a false impression to the jury as to her credibility. She further says that all this occurred but two days into the trial; and that it was not by any means inappropriate for there to have taken place a further trial which, for all one knows, may have been capable of being convened in the not too distant future. More generally, she refers to the comments of Moses LJ in paragraph 23 of the decision of the court in R v Kennedy [2008] EWCA Crim 2813, which emphasises the importance of proper disclosure so that the defence can fairly conduct its defence case at trial.
25. In our judgment, this ultimately was a matter for the trial judge's evaluation. He had a decision to make - either to discharge the jury to permit the trial to continue on the footing of appropriate, clear and specific instruction to the jury. He elected for the latter course. It is to be borne in mind that, as the trial judge, he would have had a very good feel for how things had in fact shaped up. Certainly it is right, and as Ms Merrick accepts, that the prosecution should have made disclosure earlier, before the trial started. But, as is accepted, had such disclosure been made, then in any event (and as happened) the defence would have wished to take advantage of the further detailed report in order to put to the complainant that she had not alleged rape when she spoke to the police that day. It would then have been inevitable, as part of that, there would have emerged the fact, as recorded in the report, that she had at least made mention of the hot iron.
26. In our view, the judge was entitled to take the view that no irremediable prejudice had been occasioned to the defence which was not capable of being cured by the trial process. We conclude that he was justified in declining to discharge the jury as a matter of his evaluation and discretion; and it cannot be said that the only proper course was to discharge the jury on the grounds of it being necessary to do so in the interests of justice.
27. In those circumstances, we dismiss this appeal against conviction.