England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Cardiff Crown Court
HHJ S Hopkins QC
T20170723

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/08/2018

LADY JUSTICE THIRLWALL :

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. No matter relating to the victim of the sexual offence to which we refer in this judgement shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the victim of that offence. We shall refer to her in this judgement as X.
2. On 16 November 2017 in the Crown Court at Cardiff the appellant pleaded guilty to counts three and four on the indictment, assault occasioning actual bodily harm and criminal damage respectively. The appellant was tried on count 1 of the same indictment, sexual assault. He was convicted on 21 November 2017. On 11 December 2017 he was sentenced to eighteen months imprisonment for the sexual assault, ten months imprisonment for the assault and two months imprisonment for the criminal damage, all to run concurrently.
3. This is his appeal against conviction which he brings by leave of the single judge. There is also an application to argue a further ground upon which leave to appeal was refused by the single judge. We consider the appeal and the application together.
4. X was at the time of the offences the partner of the appellant. She said in evidence that she had been out with friends on a hen night on the evening of 13 May 2017 into the early hours of 14 May 2017. The appellant said he had been out and spent the latter part of the evening at his home with friends. Both said that he contacted X by phone and text on several occasions during the course of the evening. She returned in the early hours of the morning. It was her evidence that the appellant questioned her about where she had been, whom she had been with and what she had been doing. He accused her of kissing the driver of the minibus who had driven her home. His friends observed that his conduct was like that of a jealous girlfriend.
5. X went up to bed after about half an hour. The appellant's friends left. He went upstairs, sat on the bed and started checking her mobile phone. X awoke to find him looking at the call and text traffic and photographs on Snapchat. They showed her dancing with her friends and with a man. It was X's evidence that at that point the appellant kicked her out of bed and whilst she was on the floor he punched and kicked her. She sustained bruising to her shoulders legs and arms. He also smashed some drinking glasses which were on the bedside table. He then walked around the room shouting at her and accusing her of having been unfaithful with the man in the photograph. She got back onto the bed. He pulled her legs apart and said that he wanted to inspect her genital area. They struggled. He got up, smashed her mobile phone and threw things around the room. He was screaming. He got back onto the bed and pulled her legs apart. This time she did not resist. He pulled her underwear aside, tearing it. She thought he may have seen a remnant of toilet tissue. He became very angry. He set fire to a piece of paper saying that he was going to set fire to the house. He did not put that threat into effect but went downstairs and came back with a cup of water which he threw over X. He told her that she could not sleep in the bed and he threatened to stab it with a knife he had brought from downstairs (the bed was a waterbed). She went downstairs in the hope that he would calm down. He followed her and continued to challenge her about her infidelity. She made it clear in evidence that he never threatened her with the knife. He grabbed her as she made to leave the house, but she was able to flee, went to her next-door neighbour's house and rang the bell. In cross-examination X accepted that she had been drunk but said that she had a very clear recollection of events. She said that the comment about the minibus driver was not a joke. She rejected the suggestions that the appellant had not touched her knickers, nor held a knife nor kicked, slapped or punched her.
6. The neighbour gave evidence that X had come to her door at about 5:50am. She was wet and distressed. The neighbour noticed redness by her ear on her face and on her shoulder. She also noted a smattering of blood. X said that the appellant had assaulted her and damaged her possessions. She also told her that the appellant had torn her knickers. She gave no more detail about that. Once they had established that the appellant had left her home X and her neighbour went to the property and made a record of the mess and the damage. The neighbour said that X was not drunk but she was upset.
7. X's mother gave evidence. She and her husband had been babysitting X's daughter that evening. X came to her home early the following morning. She noticed that there was bruising by her ear and she appeared upset. X told her what had happened the night before, including the details about the sexual assault. She said that X did not want her daughter to know that she was upset and she did not want her mother to tell her father what happened. There were texts before the jury that the appellant sent to X's mother that morning claiming that the complainant had cut and grazed knees. Her mother took photographs later that afternoon to show that they were uninjured.
8. In evidence the appellant said that he had never previously been in trouble with the police. He accepted that his behaviour on 17 May had been appalling and he accepted that he had caused some damage. However, he denied that he had hit or kicked the complainant or torn her knickers. He accepted that he had caused an injury to her wrist but could not explain her other injuries. He said that he had been out that night but was not drunk and that he was at the door when X returned. He had been joking when he had accused her of kissing the minibus driver. He agreed that he had telephoned and texted X while she was out. He also accepted that when she was in bed he had checked her phone messages and had seen the messages and the calls made and a Snapchat video of X, her friends and a man. He accepted that he started to question X and that he threw her mobile telephone against the wall. He also accepted breaking the wardrobe door and a mirror. He said he pulled the duvet back and noticed, he said, that she had bruised knees and torn knickers. There was a large piece of toilet paper protruding from her knickers. He thought this was some evidence of sexual contact between his girlfriend and another man. He denied that he touched her knickers or that he touched her genital area. He said he had become more upset and threw water over her. He denied that he had kicked her out of bed. He denied brandishing a knife or setting fire to paper. He said that he caused further damage and had gone downstairs to have a cigarette. He agreed that as X tried to leave he had grabbed her but he did not pursue her into the street. He accepted that this had caused bruising to X's wrists. That was the basis of his plea of guilty to assault occasioning actual bodily harm.
9. The jury heard evidence read from three character witnesses.
10. The only issues for the jury were whether the appellant touched X on or close to her genital area and whether that touching was sexual. Consent was not in issue.
11. Before summing up the case the judge prepared detailed written directions of law which he provided to counsel on Friday afternoon. On the Monday morning Mr Mather-Lees invited him to include a direction on lies. The judge refused. The exchange was brief
    "Has your honour considered a Lucas direction in relation to the matter?
    "Well that is only appropriate if the Defendant admits he's lying
    "Or if the jury find he is lying
    J: No,no,no,no,no, that goes to the evidence in the case, their assessment of his evidence but he denies he's lied at all."
    
    Grounds of Appeal
12. Mr Mather-Lees grounds are summarised in the NG document thus:

i) the directions given to the jury concerning the appellant's character/convictions (leave granted) and
ii) the manner in which the case was tried by the trial judge which, he submits, impinges upon, but does not exclusively affect ground one.

13. Ground 1 is broken down into a number of component parts in the skeleton argument. Complaint is made that the judge erred in law by: –

i) Failing to give an appropriate direction as to lies, and ruling that such a direction applied only to admitted lies.

ii) Failing to direct the jury that there may be reasons for lies other than guilt

iii) Failing to direct the jury that the offences (both pleaded to and being tried) are separate and required separate consideration.

iv) Failing to direct the jury as to how they should approach the issue of lies, and the burden and standard of proof in so far as it specifically relates to the issue of lies.

v) Failing to direct the jury adequately or at all as to the distinction between propensity and credibility; emphasising that the prosecution say that the sexual assault was part and parcel of the violence, therefore conflating two separate issues.

vi) Placing undue emphasis on the conflicting accounts of the complainant and the defendant, stating that the defendant's account "very very different from that which X told you actually happened.' is thus attributing greater credibility, and elevating the account of the complainant over the account of the defendant.


This last complaint is not arguable. The judge was making the obvious point that the accounts of the two witnesses were very different. It was, as he explained more than once, the jury's task to decide where the truth lay. We turn to the balance of the arguments under Ground 1.


14. Mr Mather Lees submits that the judge was wrong to say that a lies direction is only necessary in the case of admitted lies. We agree. A direction is undoubtedly required where a defendant has admitted lying and the jury may regard that lie as probative of guilt. Often such defendants give a reason for lying but whether the lies are admitted is not the issue. The question to be considered is whether something said which the jury are sure was a lie may be explained by something other than the appellant's guilt. The most obvious example are lies told out of panic, e.g. raising a false alibi to bolster a truthful defence. There are a range of such lies, proof of which does not lead inevitably to the guilt of the defendant. In such cases a Lucas direction is usually necessary.
    
15. This was not such a case. The judge was right to say that it turned wholly on the jury's assessment of the credibility of X and the appellant about the events of that night. There was no need for a lies direction. The suggestion that the jury should have been directed (based on no evidence) that were they to find that the appellant was lying about the extent of the physical assault they should then consider whether this might be because he was awaiting sentence is wholly unrealistic in the circumstances of this case. Such a direction would have been unhelpful to the appellant and would have been inappropriate.
16. Although the absence of the lies direction was the main plank of the written grounds, in the skeleton and then in oral argument Mr Mather-Lees directed his submissions to a different point, to which the single judge had referred, namely that the judge should have directed the jury that the fact of the appellant's guilt on the assault and criminal damage should not be used as the whole or the major part of their reasoning to convict him on the sexual offence. Mr Mather-Lees complained that the judge's direction was to the opposite effect. He relied in particular on the following passage of the summing up:
    " although you do not have to return a verdict in respect of the assault charge, you are entitled to consider the evidence about that from both X and the defendant in determining where the truth lies in relation to the count of sexual assault that you are trying and your view of where the truth lies about that [i.e. the assault charge] may assist you in coming to a conclusion about the sexual assault. The prosecution say, as you know, that the sexual assault was part and parcel of his violent, obsessive behaviour arising out of his belief that she had been sexually unfaithful to him during the hen night in Cardiff. The defendant says that although his behaviour was appalling, he did not sexually assault X."
    
17. We note that there was no complaint about this direction at trial. That is unsurprising. The jury were considering a single event prompted, as the appellant accepted, by his sexual jealousy. The sexual assault, though separately charged, was part of the same course of conduct as the other offences. The evidence of the whole event was before the jury because it was admissible and because the appellant wished them to know the whole story. It was part of his defence that he was prepared to and had admitted what he had done but he could not accept that which he had not done namely the more violent aspects of the physical assault and the sexual assault. In the passage to which we have referred the judge was doing no more than reminding the jury of the importance of the relative credibility of the complainant and defendant in their account of the whole incident.
    
18. Immediately after the passage to which we have referred above the judge went on to give a modified good character direction.
    "Apart from [the convictions on the indictment] the defendant has no other convictions or police cautions recorded against him and you've also had the character references read on his behalf, and the reason you heard about the two convictions that he does have is because they arise from the same incident which gives rise to the sexual assault allegation, so it was you may think inevitable that you would hear about them. So what should your approach be to the fact that he has no previous convictions for any offence similar to the charge you are trying? That is obviously not a defence to the charge but it may make it less likely that he committed an offence of sexual assault. You should take this account in the defendant's favour. It's for you to decide what importance you attach to it."
    
19. It was not necessary to add that the fact that he was guilty of the assault did not make him guilty of the sexual assault. That much was plain from the fact of the trial and, we would add, from the good character direction. Nothing more was needed.
    
20. We reject this ground.


Ground 2

21. It is clear from the short quotation from the transcript dealing with Mr Mather Lees' submission that there should be a Lucas direction that the judge expressed some irritation with counsel towards the end of the trial. The word no is repeated five times. Mr Mather-Lees complains (with much regret) that the judge treated him discourteously during the trial, including expressing through facial gestures that he was unimpressed with his closing speech. Ms Thomas for the prosecution does not accept that the judge was discourteous although she said that she had not been looking at the judge during the defence closing speech. It is unlikely that the jury were either. Most of the complaints were about the robust way the judge dealt with Mr Mather-Lees' submissions, but this occurred in the absence of the jury and could not have affected the fairness of the trial. Mr Mather-Lees also submits that the judge gave the impression during the appellant's evidence and during his closing speech that he did not accept the appellant's account of events. We considered de bene esse two statements which were relied on to support the submission in respect of the appellant's evidence. We are quite satisfied that even were we to admit them they would not found a successful ground of appeal. The judge's directions about the respective roles of the judge and jury were impeccable. The jury could have been in no doubt that it was their view of the evidence that mattered, not the judge's.




22. Finally, Mr Mather-Lees complains that the judge purported to correct a line in his closing speech. He had said that at the time he was being interviewed the appellant had not seen the knickers. What he meant was the appellant had not been shown them in the context of the interview. The judge made the point to the jury that the appellant had said in evidence that he had seen the knickers in the bedroom at the time of the incident. Mr Mather-Lees wanted the judge to correct the correction. The judge was not inclined to do so. This was not a point of any importance. What mattered was what the appellant had said in evidence, which the judge summed up entirely accurately.
    
23. We are quite satisfied that this ground is unarguable.
24. This appeal is dismissed.