Jersey Unreported Judgments

Court of Appeal - Rape - seeks leave to appeal against his conviction.

[2020]JCA148

Court of Appeal

30 July 2020

Before     :

George Bompas, QC., President Lord Anderson, KBE, QC., and Sir Michael Birt

 

Advocate D. S. Steenson for the Applicant

S. C. Thomas, Esq., for the Respondent.

judgment

Birt JA:

1.        This is the judgment of the Court.

2.        On 5^th February, 2020 the Applicant ("the defendant") was convicted by unanimous verdict of the jury of one count of rape upon his wife ("the complainant").  The offence was alleged to have occurred on 1^st December, 2018 during a family holiday in Region of Europe 1.  He was subsequently sentenced to 4½ years' imprisonment.  He now seeks leave to appeal against his conviction. 

The evidence

3.        The prosecution case consisted essentially of the evidence of the complainant, evidence of recent complaints to a number of friends shortly after the alleged rape, and evidence of a meeting after the incident between Dr C, a psychiatrist, and both the complainant and the defendant. 

4.        The defendant and the complainant were married in 2007 and have two children; a daughter and a son [redacted].  They came to live in Jersey in 2016.  [Redacted].

5.        According to the complainant, the marriage encountered difficulties from about August 2018, and in early October 2018, the defendant told the complainant that he was going leave her.  During the course of the next few weeks, the complainant sent five emails to the defendant describing her feelings.  These were admitted in evidence and we shall refer to them further below.  The emails show that the complainant wished the marriage to continue and a recurring theme was the defendant's desire to have sexual intercourse more frequently than the complainant. 

6.        Towards the end of October, the family went on holiday to Region of Europe 2.  A week or two before that, the complainant had discovered that the defendant had been having an affair with a 23 year old patient K, although the defendant told her at that stage that it was simply an emotional affair and there was nothing physical.  The complainant said that she and the defendant nevertheless had frequent consensual sexual intercourse during the holiday in Region of Europe 2.  On 31^st October 2018, she sent a further email explaining her feelings during the course of which she said the following:-

"You want sex whenever you click your fingers, or at least twice a day.

On holiday this is maybe achievable but I am already getting worn down by - physically sore, feeling more and more used.  We can have incredible sex but the more you get, the more you seem to want and the less you seem to care about what I want ....."

All that being said, I do recognise a long-standing mis-match between our sex drives.  I have selfishly not considered your sexual needs until recently, and I promise I will try harder to initiate, engage in and enjoy sex moving forward.  HOWEVER this does not mean you get to have unlimited sex.  I am not prepared to feel used or abused and that is how I am feeling now.  I made the decision at the start of this holiday to try and show you how much I loved you and wanted you to stay, regardless of the pain and hurt I am feeling.  It has been a big sacrifice for me to swallow my pain, mistrust and principles and give you my body.  I don't think you really appreciate this and are just using me to have sex and take your mind of [sic] everything else."

7.        There were further emails following their return to Jersey dated 8^th November, 13^th November and 19^th November 2018.  These again explained the hurt that the complainant was feeling and touched upon the frequency of sexual intercourse desired by the defendant.  For example, in the email of 19^th November 2018, the complainant wrote:-

"You also said that although you wanted sex three or four times per day, you would settle for twice.  [B], this is not achievable.  I am sorry but I cannot and will not fulfill this.  You are not being fair on me by projecting such demands.  I will make an effort to be more friendly and engage more with you sexually but I will not be there at your beck and call.  I do not want to feel like sex is expected daily regardless of other circumstances or feeling.  This is not fair.  If I am tired or feeling unloved, I will not just do it for the sake of it.  It makes me feel horrible - used and frankly abused."

8.        From 28^th November to 1^st December 2018, the family went on a pre-booked holiday to Region of Europe 1.  According to the complainant, the defendant had said that he was going to move out following their return and had arranged to view a property available for short term let on his return.  The complainant said that she did not want to admit that the marriage was over and she thought that if she made the holiday amazing, the defendant would realise what he had. 

9.        In Region of Europe 1, the family stayed in a log cabin.  This consisted of a main room with two double beds placed foot to foot and a bunk bed above each of the double beds.  It was an open plan room with a small kitchenette area.  There was a shower room and a separate sauna room off the shower room. 

10.      During the holiday, the complainant and the defendant had frequent consensual sexual intercourse.  According to the complainant it was in the sauna or the shower although she accepted in cross examination that she and the defendant had sometimes had sexual intercourse in the past in the same room as the children when they were asleep and she could not remember whether they had done so during this holiday. 

11.      On the last night of the holiday, there was an argument over dinner when the children were playing [redacted] outside.  According to the complainant it started because they had had sexual intercourse in the shower just before going out to dinner and the defendant was complaining that it was in the shower because he did not like sex in the shower.  The argument moved on to an argument about K because the defendant admitted he still had feelings for K.  This led the complainant to message him, sending him a photograph of K and of the complainant and telling him that he had to choose.  She said that accordingly the atmosphere was not good before they went to bed.  Her recollection was that the children were sleeping in one double bed and she and the defendant in the other.  She was on the side against the wall and the defendant was on the outer side of the bed away from the wall.

12.      She said that she woke in the morning (1^st December 2018) to feel the defendant's erection digging into her.  They were in a spooning position.  He was tugging at her pyjama bottoms and she said 'no' repeatedly.  She was lying on her left side facing the wall and he was behind her.  He pulled her pyjama bottoms down, she pulled them back up and he pulled them down again.  When she said 'no' he said "Don't say no to me.  This is my last chance to be close to you."  She knew the defendant heard her say 'No' because of this response. 

13.      She understood him to say that because he was leaving.  He then had sex with her from behind.  She did not reciprocate and was not aroused.  She was lying on her side and her hands were clenched into balls.  At one stage he tried to unclench one of her fists and she remembered thinking that if he felt that, he would know that there was something wrong and that she did not want to have sex.  However, he just kept going.  She thinks she started crying, but she was trying to be very quiet because she did not want the children to hear anything.  She just let him do it. 

14.      At one stage the daughter woke up and got out of bed.  The defendant told her to get her iPad and to get into the top bunk, which she did.  The complainant did not get up when the daughter awoke; she was frozen.  The defendant then carried on.  She did not try to make him stop because she did not want the children to hear.  She just let him get on with it.  When the defendant had finished she got up and had a shower. 

15.      They had to pack up in order to catch the aeroplane home.  At some stage during the course of the day, she typed up her account of what had happened on her phone and when they were at Gatwick, where they had to spend the night in a hotel before flying back to Jersey, she cut and pasted the text and sent the message to two of her friends, D and F.  The account she gave in her message was as follows:-

"There are no words for what [the defendant] did to me today other than rape.  His sense of entitlement is beyond any moral or legal code.  Just because I am his wife and I have said yes before does not give him the right.

This morning I said 'no' at least 10-20 times.  He forced my pyjama bottoms down, I pulled them up.  I was laying on my side between him and the wall.  The children were in the room with us so I could not shout or make a fuss without them hearing.  He pulled my bottoms down again and basically forced his way in, despite me continuing to say no and trying to move away.  He definitely heard me.  He was saying things like "stop saying that, it's my last chance to be close to you."  I lay on my side with my fists in balls and tears running down my face while he finished.  I couldn't move, didn't fight him as I just wanted it over and didn't want [the children] to hear us fighting.  This lasted 15, maybe 20 minutes.  Sheer hell.  The worst thing is I expected him to show some sort of remorse after, offer an apology.  He can't even see that he is in the wrong.  I tried to tell him this evening that his behaviour was completely unacceptable and abusive but he just dismissed me.  How can I put up with this?  What do I do?  I am sickened that he would do this.  I can't wait to get home. 

16.      The complainant said that a couple of days after they got back, the defendant told her that he had been to see the short term let and did not like it.  He did not want that life; he wanted to stay and was going to do everything he could to make the marriage work.  The complainant did not want her marriage to end either.  The complainant accepted in cross examination that there had been friendly WhatsApp messages between the complainant and the defendant during the week after their return (which were produced to the jury) [Redacted].

17.      However, on 8^th December 2018, she had discovered the content of messages which had previously taken place between K and the defendant which showed that, contrary to what he had told her, there had been a physical affair.  She also discovered that he had not cancelled a hotel room which he had booked for the following weekend for K's work Christmas party.  As a result of this, the defendant moved out on 8^th December 2018.  She went to see a lawyer the following Monday, and he advised that she should contact the police.  She went to see the husband of one of the women that she had messaged about what had happened, who was a police officer, and he encouraged her to go to the Sexual Assault Referral Centre (SARC).  She went there the same day and said what had happened in Region of Europe 1, but at that stage she did not think she wanted to make a complaint.  However in due course she made a formal complaint on 24^th January 2019.

18.      In cross examination it was put to her forcefully that the incident which she had described simply could not occur without cooperation on her part.  Thus, given that she was on her side facing away from the defendant, he could not pull down her pyjama bottoms without her lifting her hips to assist and he could not penetrate her, particularly if she was not aroused, without assistance on her part by moving her hips and legs.  Her response to all these various matters was simply that he 'just did it'.

19.      The two women to whom the complainant had sent her message gave evidence briefly as did her general practitioner, whom she had been to see on 6^th December 2018, and to whom she had repeated the allegation of rape. 

20.      The only other material evidence was that of Dr C, a psychiatrist, who saw the complainant and the defendant together on 7 December 2018.  We refer to his evidence in more detail below.

21.      The defendant gave evidence in support of his case that the sexual intercourse on the morning of 1^st December 2018, had been fully consensual.  He said that they had had frequent sex during the holiday in Region of Europe 1 and indeed had sex in the shower before dinner the night before the incident.  He agreed that there had been an argument during dinner and that the complainant had sent him the two photographs via her telephone telling him to choose, but he felt that they had talked things over during dinner and that the atmosphere was better by the time they went to bed.  His recollection was that the children were sleeping on the top bunks rather than in the other double bed. 

22.      He said that they often had intercourse in the morning in the same position as on this occasion i.e. on their sides with him behind her.  On the day in question he woke up before her and kissed her on the cheek causing her to wake up.  She was lying on her back but rolled over onto her side and backed into him, which was a sign that she was ready to have sex.  He started to pull down her pyjama bottoms and she lifted up slightly to assist him as, because she was on her side, it would have been difficult to pull the pyjama bottoms down without her help.  She brought her knees up and moved her hip back so as to put herself into a position that he could enter her.  She was clearly aroused as he went straight in and they had sex.   At no point was anything said as the children were asleep in the room.  She definitely did not say 'no' and he did not make the remark attributed to him.  She was actively participating and he would have known if she had said something.  She was not 'frozen' and she had not had her hands clenched in a fist.  The daughter had woken up at one stage and come down from the top bunk.  He had told her to get her iPad and go back up to the bunk, which she had.  They paused when the daughter came down but continued to have sex once she returned to the top bunk.  He remained inside the complainant when the daughter came down.  Intercourse lasted about 10 - 15 minutes and afterwards the complainant went and had a shower.  Nothing was said about the sex. 

23.      The first time that the complainant mentioned rape was when they were in the car going to see Dr C on 7^th December 2018.  She said that she was going to tell Dr C that he had raped her in Region of Europe 1.  He was shocked and said that had not happened. 

24.      As part of the defence case a short video interview with the daughter was played but this did not take the matter any further. 

25.      Following speeches from both counsel, the Commissioner, Sir William Bailhache summed up.  In due course the jury returned a unanimous guilty verdict. 

26.      No criticism has been made before us as to the content or fairness of the summing up.  We refer below to one particular issue dealt with in the summing up (this being issue (ii) below concerning a conversation in the office of Dr C).  As to the crucial issue at the trial, whether the sexual intercourse on the occasion in question had been on the one hand consensual, or on the other hand submissive and non-consensual, the summing up drew attention to the considerations the jury should keep in mind. In this regard a major plank in the defendant's case at trial, as it has also been before us in challenging the jury's verdict, was that the evidence should have led to a conclusion that the complainant must have been co-operative in the sexual intercourse and therefore must have consented. 

Grounds of Appeal

27.      The defendant was represented by Advocate Jones before the Royal Court.  He is now represented by Advocate Steenson.  The grounds of appeal include criticism of certain actions of Advocate Jones in the conduct of the defence at trial.  In accordance with the required procedure in such cases, the defendant has sworn an affidavit waiving privilege and Advocate Jones has sworn an affidavit responding to the criticism.  No disputed factual issue arises between them which would require this Court to hear oral evidence in order to determine the relevant issue.  We have therefore dealt with the matter simply on the basis of the affidavits, as in the case of M -v- AG [2020] [JCA] 100.  We would summarise the grounds of appeal under the following headings:-

(i)        Advocate Jones failed to advise the defendant that he could elect for trial by Jurats rather than a jury.

(ii)       Advocate Jones failed to put the defendant's case to Dr C. 

(iii)      Advocate Jones failed to advise that expert evidence be obtained on the practicalities/likelihood of non-consensual sexual intercourse having taken place as described by the complainant.  In this connection there is an application to adduce further evidence in the form of two expert reports.  

(iv)      The Royal Court was wrong to admit the five emails and undue weight was placed on them during the trial. 

(v)       The jury's verdict was unreasonable or cannot be supported having regard to the evidence. 

28.      As can be seen, three of the grounds of appeal rely upon criticisms of actions taken by Advocate Jones as defence advocate at trial.  The circumstances in which errors by counsel at trial can lead to a successful appeal against conviction were considered by this court in Lewis and others v AG General 2013(1) JLR 325.  The correct approach was outlined by Nutting JA at paragraphs 269-272, in the following terms:-

"269    It is important to assess the significance of these complaints against the authorities. There is limited jurisprudence in this jurisdiction; but there are two strands of authority emanating from appellate courts in London and elsewhere in recent years concerning cases of alleged incompetence by counsel during the course of a trial. The first strand evaluates the nature of the incompetence. The second focuses on the effect of the incompetence on the verdict. In regard to the first, in R. v. Donnelly (27), the Court of Appeal in London held that nothing less than flagrant incompetence would do. In R. v. Day (26), the court held that the single test was one of safety and that the appellant has to show that the incompetence led to identifiable errors and irregularities in the trial, which themselves (in accordance with the test on appeal in English statute law in respect of a criminal conviction) rendered the verdict unsafe or unsatisfactory.

270     It is clear that in the mainland jurisdiction the second strand of authority is now to be preferred. In R. v. Clinton (25), the court held that since the sole issue is the safety of the conviction, a qualitative assessment of counsel's alleged ineptitude is less helpful than an assessment of its effect on the verdict; see also Teeluck v. Trinidad & Tobago (45) where the Privy Council held that the appellate court ought to focus on the impact which counsel's errors had on the trial and the verdict, rather than to attempt to rate his conduct in accordance with a scale of ineptitude.

271     It is clear, however, from Clinton that decisions made by counsel in good faith after proper consideration of the competing arguments and, where appropriate, after due discussion with the defendant will not, without more, render the conviction unsafe even though the Court of Appeal may disagree with those decisions. It is also clear from Lord Woolf's judgment in the Hong Kong Court of Final Appeal in the case of Chan Fat Chu v. HKSAR (11) (12 HKCFAR 775, at para. 10) that-

"the initial responsibility is on the appellant to place before the court material on which the court can conclude that an injustice has occurred which justifies its intervention .-‰.-‰. [I]t is not sufficient for an appellant to show that, in a particular aspect of the proceedings, the lawyer has fallen below the required standard. It must also be shown that what has happened has resulted in unfairness or injustice."

272     The English test for a successful appeal is "unsafe or unsatisfactory." The test in Hong Kong is "grave and substantial injustice." The test in this jurisdiction is that of "a miscarriage of justice." Notwithstanding the different tests, we see no reason why the principles to which we have referred in those two other jurisdictions should not inform the jurisprudence of the Bailiwick.

29.      We must consider therefore whether any alleged errors by Advocate Jones have led to unfairness or injustice. 

30.      We turn to consider each ground of appeal in turn.

(i)         Failure to advise on trial by Jurats

31.      The offence of rape was an offence at customary law until the enactment of the Sexual Offences (Jersey) Law 2018, Article 5(1) of which establishes rape as a statutory offence (contravention).  However, pursuant to Article 41(1)(a) of that Law, an offence of rape is still to be treated as an offence at customary law for the purposes of mode of trial.

32.      Article 48(2) of the Criminal Procedure (Jersey) Law 2018, provides that a person charged with an offence at customary law may elect whether to be tried by a jury or by the Inferior Number, consisting of a presiding judge and two jurats. 

33.      In his affidavit, the defendant asserts that he was at no stage advised by Advocate Jones of his right to choose trial before the Inferior Number rather than by a jury.  He asserts that, if he had been advised of this choice, he would have elected for trial before the jurats. 

34.      In his affidavit, Advocate Jones accepts that he and the defendant did not have any discussion as to whether or not the defendant should be tried before the Inferior Number.  He says however that, had he given advice on the point, he would have advised in the strongest possible terms that the defendant's trial should be before a jury. 

35.      It is unfortunate that the defendant was not advised of his possible choice.  For the future, we make it clear that it is part of counsel's duty to alert a defendant to the two possible modes of trial and to seek instructions as to which mode is to be chosen.  Counsel is of course free to give advice as to which mode would in his or her opinion be preferable. 

36.      However, we cannot accept that the failure to provide such advice can amount to a valid ground of appeal.  The issue for this Court is whether the defendant had a fair trial and whether there has been a miscarriage of justice.  It must be a matter of complete speculation as to whether two jurats would have reached the same decision as the jury or a different one.  If our conclusion is that the defendant had a fair trial, that there was no misdirection or inadmissible evidence and that the verdict was one which was reasonably open to a jury, it would not be right to allow an appeal against a fair and proper conviction simply because the defendant was not advised of a possible alternative mode of trial.

(ii)        Failure to put the defendant's case to Dr C.

37.      As stated above, the complainant and the defendant went to see Dr C on 7^th December, 2018.  The oral evidence of Dr C was to the effect that the complainant spoke of the incident in Region of Europe 1 in some detail and said that she now believed that she had been raped.  In particular he said the following (Day 2, page 68 of the transcript):-

"part of her description of the incident to myself and her husband was that she was confident she had said 'No' on several occasions, to which her husband had responded 'well if that was the case, he's really sorry and it will never happen again."

38.      In cross examination Dr C accepted that it was correct that the husband's response had been "well if it was the case you said 'No' then I apologise and it won't happen again".

39.      It was accepted by Advocate Jones that the defendant's instructions to him at trial were that, at the meeting, with Dr C, he (the defendant) was apologising for having sex in the same room as the children, not in relation to the complainant saying 'No' to sex.  Indeed, this was the evidence he gave at trial when cross examined by Crown Advocate Thomas.  He said that the reference to 'No' was in the context of the complainant saying at the appointment with Dr C that it was an automatic 'No' if the children were in the room.  It was in response to that remark that he had said that, if that was the case, it wouldn't happen again (page 118 of the transcript). 

40.      Advocate Steenson submits that Advocate Jones' failure to put the defendant's case on this point to Dr C was very damaging because Crown Advocate Thomas was able to suggest during his cross examination that what the defendant was saying in evidence had not been put to Dr C and that the defendant was making it up.  Counsel's failure therefore undermined the defendant's evidence.

41.      Advocate Jones' explanation for his decision not to put the defendant's case on this point was as follows.  In his witness statement, Dr C had exhibited a file note which he had made during the course of the meeting.  On this point, the file note read:-

"He [the defendant] says he is confused how that could be called rape when she did exactly the same thing to him in [Island in Europe].  He says that if that's the case and she really meant 'No' when she meant [sic] 'No', then he apologises sincerely and it will never happen again."

The second 'meant' would appear to be an error and should have read 'said'.  Advocate Jones formed the view that the note was potentially very damaging to the defendant's case.  The clear implication of the note was that the defendant was accepting that the complainant had said 'No' to having sex with him, and the defendant had heard her say 'No', but that he did not think she meant it.  That was completely contrary to the defendant's case at trial which was that the complainant had never said 'No' to sexual intercourse on the occasion in question. 

42.      Advocate Jones formed the view that it was extremely important to keep the note out of the evidence before the jury.  On day 2 of the trial, the Crown applied for the note to be admitted as hearsay evidence and as a business record.  Advocate Jones objected and the Commissioner ruled in his favour.  Relieved by that decision, Advocate Jones took the view that, if he cross examined Dr C by putting the defendant's case as contained in his instructions, this was likely to allow the Crown to produce the note to the jury.  He considered that the oral evidence that Dr C had given was a vast improvement on the note.  The crucial difference was that, in the oral evidence what the defendant was reported to have said was "well if it was the case you said 'No', then I apologise and it won't happen again."  This, Advocate Jones felt, made it plain that, according to Dr C, the defendant was absolutely not accepting that the complainant had said 'No' or that he had heard her say 'No'.  He was simply saying that if she had said 'No', then he was sorry. 

43.      We have to say that in our judgment Advocate Jones should have put the defendant's case to Dr C in accordance with his instructions.  It is in general counsel's duty to ensure that the defence case is put fully and fairly to witnesses.  That must be the defence case as instructed even where the defence advocate considers that this may be damaging because, for example, the defendant's case is inherently unlikely.  Nevertheless, as outlined above, the question for this court is whether the failure to put the defendant's case to Dr C about what was said at the meeting has led to unfairness or injustice. 

44.      In our judgment, the manner in which Advocate Jones dealt with this aspect cannot possibly be said to have been damaging to the defendant's case.  If he had put to Dr C the suggestion that the defendant's comment was in the context of not having sex when the children were in the room, there would clearly have been a very substantial risk that the Crown would have been able to adduce the file note.  If the file note were to be adduced, this would have been much more damaging to the defendant's case than the comment which the Crown Advocate was able to make about the case not having been put.  That is because, as previously stated, the clear implication from the file note is that the defendant accepted that he had heard the complainant say 'No' to having sex with him on the occasion in question, but thought she did not mean it.  That was completely contrary to the defence case and would undoubtedly have been very damaging.

45.      Furthermore, the defendant's case in this respect was inherently unlikely.  First, the complainant accepted in cross-examination that she and the defendant sometimes had sexual intercourse when the children were in the same room and could not remember whether they had done so during the holiday in Region of Europe 1.  The jury might well therefore have found it very unlikely that this would have been the subject of her complaint at the meeting with Dr C or that the defendant would have felt the need to apologise for such conduct.   Secondly, the critical passage in Dr. C's note connects the exchange in which the defendant was described as making his apology with an allegation of rape rather than one of having had sexual intercourse in the presence of the couple's children. 

46.      In any event, when summing up, the Commissioner dealt with this aspect in a manner which was helpful to the defence.  In his closing speech, Crown Advocate Thomas had misstated Dr C's evidence and asserted that as being effectively in the terms of the note rather than as had in fact been given orally.  Advocate Jones quite properly raised this error in the absence of the jury and it was agreed that the Commissioner would deal with the matter in his summing up.  The Commissioner duly did so, and, having recorded that there was a slight difference between counsel as to what Dr C's evidence was and having set it out accurately, he went on to say:-

"I suggest to you that you consider that evidence in this context, that, when challenged in his presence by the complainant on whether she had said 'No', the defendant said that, if that was the case, he was very sorry and it would never happen again.  If you accept that was what the defendant said, that is capable of supporting a defence that he believed that she was consenting at the time."

47.      This summing up therefore reminded the jury that the evidence given by Dr C was not only of there having been merely a conditional apology, and thus of the defendant not having agreed that the complainant had said "No", but was also indicative that the defendant had conveyed that he believed the complainant to have consented.  

48.      In summary, we do not accept that Advocate Jones' decision not to put the defendant's case to Dr C was prejudicial to the defendant.  It would have been far more damaging to the defence case if the manner in which Dr C was cross examined had led to the file note being produced to the jury; the result of Advocate Jones' decision was therefore beneficial to the defendant.  Accordingly we reject the ground of appeal resting on Advocate Jones' failure to put the defendant's case having led to unfairness or injustice. 

(iii)       Failure to obtain expert evidence.

49.      The defendant seeks to adduce in evidence two reports from medical practitioners with a view to showing that it is unlikely that sexual intercourse could have occurred in the manner described by the complainant in the absence of threats or force, neither of which were alleged in the present case.  

50.      The first report is from Professor Jason Payne James, an extremely experienced forensic physician who is recognised by the General Medical Council as a specialist in forensic and legal medicine.  He states that for 25 years he has assessed several hundred assailants and or victims (adult and child) in varying cases of assault or injury each year, including sexual offence examination, torture and asylum cases and he has undertaken primary care of detainees in police custody with the full range of medical problems and illnesses. 

51.      He summarises in his report key aspects of the evidence of the complainant and the defendant.  He describes the relevant female genital anatomy and concludes as follows:-

"299.   Because of the anatomical position of the vaginal opening it is facilitated by the female either flexing (lifting) her legs and/or leaning forward, to better expose the vaginal opening.

300.    Dependent on the size of the individual, spreading the legs may also assist in allowing the penis access to the vaginal opening.

301.    Because of the angled-back direction of the vagina itself, even when the vaginal opening is accessed, full penetration from behind may require further manoeuvre or possible manual assistance from either partner. 

302.    Full penetration would be made more difficult by absence of lubrication (whether external or from the female's own secretions).

303.    Full penile penetration with the legs extended (straight) with the buttocks together, and no lubrication or assisted location of the vaginal opening is possible, but in general some or all the factors in previous paragraphs facilitate this and (in the absence of restraint or force) would require to some extent the cooperation of the female partner.

.....................................

306. ......... In the absence of force or restraint, either straightening the legs, pushing the pelvis forward or lifting the body up the bed, might all be means either individually or together where penile penetration from behind could be prevented or ceased".

52.      The second report is from Mr. Jeremy Crew, consultant urologist.  His specialist interest is general urology and urological oncology and he has a subspecialist interest in the management of bladder cancer and prostate cancer.  He too has read a transcript of the evidence and his report is to much the same effect as that of Professor Payne-James.  He agreed that, if the female is in a horizontal position with her legs pointing straight down, it would be difficult to achieve vaginal penetration without the use of significant force.  However, he noted that in this case the couple were referred to as 'spooning' which indicated that the complainant had her knees and hips slightly bent.  He concluded that in that position if the female did not wish penetrative intercourse to occur, she could make this difficult by keeping her legs straight and thrusting her pelvis and buttocks forward thereby increasing the angle of the vagina.  However, once vaginal penetration had been achieved, then minor movement of the female partner, including movement of the legs and pelvis, would not necessarily dislodge the male penis from the vagina and it was therefore his professional opinion that, if penetrative vaginal intercourse was initiated and then the female changed her mind, simple actions such as thrusting the pelvis or moving her legs might not prevent continuation of the penetrative vaginal intercourse to ejaculation.  Cessation could however be achieved by significant movements from the female partner such as turning on her back or front.  In short he was not able to comment as to whether a rape or forced sexual intercourse occurred and was not able to confirm whether full penetrative vaginal intercourse occurred but, within the confines of not having met or examined either the complainant or the defendant, he agreed with counsel for the defence that, on purely anatomical grounds, penetrative intercourse would be difficult without cooperation from both parties. 

53.      The first question for our determination is whether the evidence of these two medical practitioners would had been admissible as expert evidence if it had been applied for at trial. 

54.      The test for whether evidence is admissible as expert evidence is well established.  It was conveniently summarised by this Court in Lekkerkerker v AG [2014] (1) JLR 272 in the following paragraphs of the judgment of Nutting JA:-

"23.    As a general rule in a criminal trial, evidence is not admissible with regard to anything not immediately within the knowledge of the witness.  This rule excludes, inter alia, expressions of opinion or belief save in respect of the evidence of a person who is qualified to express an opinion on the subject which he has recognised expertise (CR v Silverlock(8)).

24.      Thus, the opinion of an expert is admissible to furnish the court with information 'which is likely to be outside the experience and knowledge of a judge or jury" (per Lawton, LJ in R v Turner [1975] QB at 841.  In that case the judgment continues (ibid.):

"If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.  In such a case if it is given dressed up in scientific jargon it may make judgment more difficult.  The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinions on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves: but there is a danger that they may think it does"."

55.      A further helpful summary of the position is to be found in the judgment of King CJ in the South Australian Supreme Court in the case of R -v- Bonython [1984] 38 SASR 45, quoted with approval in this jurisdiction in AG -v- Bhojwani [2009] JRC 207A at paragraph 21 and by the UK Supreme Court in Kennedy -v- Cordia (Services) LLP [2016] UKSC 6 at paragraph 43.  King CJ said this:

"The general rule is that a witness may give evidence only as to matters observed by him.  His opinions are not admissible.  One of the recognised exceptions to this rule is that which relates to the opinions of an expert.  This exception is confined to subjects which are not, or are not wholly within the knowledge and experience of ordinary persons.  On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court.  Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions.  The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible.  This may be divided into two parts:- (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.  The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court."   

56.      Advocate Steenson submitted that, when assessing whether information is likely to have been within the experience and knowledge of a jury, the court must consider whether it would be so in relation to any individual juror.  We cannot accept that submission.  The clear inference from the above authorities is that it is the jury as a whole rather than its individual members whose anticipated knowledge and experience is relevant.   

57.      In his affidavit, Advocate Jones states that he was of the view that opinion evidence as to the mechanics of sexual intercourse was inadmissible.  In our judgment he was correct.  The physical logistics of the act of sexual intercourse alleged in this case was a matter which could be expected to be within the experience and knowledge of a jury.  There is no suggestion that the two proposed witnesses have carried out practical experiments in relation to the matters upon which they opine.  Whilst of course they have considerable expertise in the anatomy of the body, there is no evidence that they have greater experience than members of the jury as to the practicalities of sexual intercourse in the spooning position described by the complainant.  In this respect it is of note that Advocate Steenson was unable to refer us to any case in which expert evidence of this nature has been admitted. 

58.      We hold therefore that the proposed evidence would not be admissible as expert evidence because the information contained in the evidence was not outside the normal experience and knowledge of a jury.  It follows that there can be no criticism of Advocate Jones for his decision not to seek to obtain such evidence at trial, and there can be no question of allowing the admission of such evidence on this appeal. 

59.      It is therefore not necessary for us to go on to consider whether the test for the admission of evidence on appeal is met.  However, had we decided that the evidence was admissible, we would have had to go on to determine, among other matters, whether the evidence might have created a reasonable doubt in the mind of the jury. 

60.      In our judgment, it would not.  First, neither report asserted that sexual intercourse would have been impossible without the complainant's co-operation and consent, at least if her legs were bent: the transcript shows that she never said what position her legs were in, and was unable to do so.  Secondly, both reports indicate that, if she had taken some action (respectively, straightening her legs or making significant movements by turning on her back or front), this would have led penetration to cease.  However, the Commissioner correctly directed the jury that they must put aside any preconceived notions as to how a person who is raped would behave.  As he pointed out, some victims of rape noisily object and fight, others are silent and others may freeze. 

61.      The complainant's evidence was clear in that she froze.  For example, when giving evidence in chief (at page 64) the following exchange took place: 

"Q: And while [B] was having sex with you were you able to do anything to stop him having sex with you? 

A: I didn't try because I didn't want the kids to hear and so I let him do it.  I mean, I could have done, I don't know.  I just, I didn't.  I did, I just, I was just lying there." 

Similarly, under cross-examination (at page 100) with reference to the time when the daughter woke up, the following exchange took place:

"Q: Why didn't you just, why didn't you take that opportunity if that ...

A: Because I was just ...

Q: If ... if you were being raped, that was a golden opportunity. 

A: ... because I was just frozen.  I was just frozen and he was just doing it and I just wanted it over so and I didn't want the kids to see me crying or shouting or, I just, I just, I just needed to just get it over." 

62.      In those circumstances, the expert evidence as to how she could have brought the rape to an end would not have assisted the jury.  The matter was squarely before them and the complainant gave evidence as to why she did not attempt to do so. 

(iv)       The Royal Court was wrong to admit the five emails

63.      Advocate Steenson submits that the Royal Court was wrong to admit the five emails in evidence.  He further submits that they became disproportionately significant as a result of being such a focal point of the examination in chief of the complainant and the cross examination of the defendant by Crown Advocate Thomas. 

64.      As explained earlier, the emails were sent by the complainant to the defendant between 8^th October and 19^th November 2018.  For the most part they expressed her anguish at the defendant's disclosure that he was planning to leave and her feelings about their relationship.  They also commented on the defendant's expectations in relation to sexual intercourse and the complainant's feelings in that regard.  We have quoted examples of what she said in that respect earlier in this judgment.

65.      At a pre-trial hearing, the Crown sought to adduce the emails in evidence, which application was opposed by Advocate Jones on behalf of the defendant.  In a judgment dated 27^th January 2020, the Bailiff ruled that, subject to editing to remove certain irrelevant prejudicial material, the emails should be admitted on two grounds.  First, they constituted important background evidence.  In connection with the allegation of rape it was important for the jury to be aware of the state of the marriage between the complainant and the defendant, particularly in relation to their sexual relations.  Secondly, he found that, although Advocate Jones had in his submissions asserted that the issue of mistaken belief as to consent did not arise, there was nevertheless a possibility that it might arise during the course of the trial and in his view what was said about sexual intercourse in the emails could be relevant in that regard. 

66.      Advocate Steenson says that the Bailiff was wrong in his decision. He submits that the emails were not relevant to whether, on this particular occasion in Region of Europe 1, the complainant did or did not consent to intercourse.  He further submits that, in view of the fact that Advocate Jones was asserting that the defence of mistaken belief did not arise, the Bailiff should not have admitted the emails on the second ground.  

67.      The position governing the admissibility of background evidence was helpfully summarised by Nutting JA in this Court in U v AG [2012](1) JLR 349 in the following terms:-

"39     The seminal exposition of the admissibility of background evidence of such a kind derives from the judgment of Purchas, L.J. in the case of R. v. Pettman (12):

"Where it is necessary to place before the jury evidence of part of a continual background or history relevant to the offence charged in the indictment, and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."

40       The inclusion of such evidence is sometimes said to originate from the justification of including evidence of motive, for example, in cases of murder.........

41       But in truth all that is required is that such evidence passes the threshold test for relevance; and, although background or historical evidence may include evidence of similar fact, it is important to distinguish evidence of background from similar fact evidence because of the higher test of admissibility invariably accorded to the latter. Professor Birch pointed out the distinction in his Commentary on R. v. Stevens ([1995] Criminal Law Review at 651):

"Similar fact evidence is employed as evidence which tends strongly to prove a particular fact (identity, intent, causal connection or whatever) which could be proved by other means but which the prosecution has chosen to establish by reference to other misconduct of the accused. As such, the evidence may need to be possessed of a high degree of probative value in order to buy its ticket to admissibility, for it involves 'dragging up' material which is by definition prejudicial and which might have been left out. Thus it has been said that such evidence should be admitted in circumstances where it would be an 'affront to common sense' to exclude it (per Lord Cross in Director of Public Prosecutions v. Boardman [1975] A.C. 421 at p.456). Background evidence, on the other hand, has a far less dramatic but no less important claim to be received. It is admitted in order to put the jury in the general picture about the characters involved in the action and the run-up to the alleged offence. It may or may not involve prior offences; if it does so this is because the account would be, as Purchas, L.J. says [in R. v. Pettman (May 2nd, 1985, unreported)], 'incomplete or incoherent' without them. It is not so much that it would be an affront to common sense to exclude the evidence, rather that it is helpful to have it and difficult for the jury to do their job if events are viewed in total isolation from their history."

68.      In our judgment the Bailiff was correct to hold that the emails were important background evidence as described in U.  In determining whether or not the complainant had consented to sexual intercourse on this occasion, it was necessary for the jury to know the background to the relationship between the parties and the run up to the alleged offence.  It would be wrong to expect the jury to decide whether or not she had consented on this occasion without knowing about the feelings in relation to sexual intercourse which the complainant had communicated to the defendant in the emails and the general state of the relationship between the parties.  Without the emails, the jury would have had an incomplete picture.

69.      The Bailiff was, in our judgment, also correct to admit the emails on the second ground, namely that they would be relevant evidence in the event of a mistaken belief in consent being an issue.  Whilst it is true that this was not the defence case, the Commissioner correctly left the issue to the jury as being one possible view of the evidence in the case.  In our judgment, it was inevitable that he would have to do so.  The defendant was saying that the complainant consented.  If the jury concluded that he was wrong and that she did not consent, they would have to go on to decide whether he reasonably believed she was consenting.  What the complainant said in the emails about her willingness to have sex with the defendant was clearly relevant to that issue.

70.      Advocate Steenson further submits that reading out the emails in full in evidence in chief and cross examination at some length on the emails was unfair and may have led the jury to place undue weight upon them.  We do not accept that submission.  Once it was decided that they were admissible in evidence, it was inevitable that the emails should be read out in order to ensure that the jury was aware of them.  As to the cross-examination we have carefully considered the transcript of the cross examination and do not consider that Crown Advocate Thomas' questioning was in any way improper or unfair. 

71.      Furthermore, following consultation with counsel during which the Crown Advocate made clear the limited purpose for which the prosecution sought to rely on the emails, the Commissioner was careful to ensure that the jury were properly directed as to the limited relevance of the emails.  Thus (at page 61 of the transcript of Day 3), he directed the jury that they must not treat the emails as showing the defendant had a propensity to have sex in an abusive manner and that they must be very careful about making any assumptions that, because the complainant put her concerns in writing, it followed that on the occasion of the charge she was not in fact consenting to intercourse.  He pointed out that the difficulty about relying to any great extent upon the emails, other than to show what was the source of difficulty between the couple, was that it was agreed that the complainant and defendant did have consensual sex many times after the emails were sent, so that it was hard to see the emails established one way or another whether there was consent on the occasion giving rise to the charge.  He directed them therefore to be cautious about placing too much reliance on the emails, other than giving a context to some of the difficulties in the marriage. 

72.      In our judgment this was an entirely proper direction which instructed the jury as to the limited use which could be made of the emails and Advocate Steenson did not criticise it in any way.  The submission that the emails should not have been admitted or that their admission somehow led to unfairness in the trial is rejected. 

(v)        The verdict was unreasonable or cannot be supported having regard to the evidence.

73.      The relevant part of Article 26(1) of the Court of Appeal (Jersey) Law 1961, provides as follows:-

"(1)  .... on any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence ..... or that on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal ....."

74.      The approach of this Court to a suggestion that a verdict was unreasonable or cannot be supported having regard to the evidence was usefully summarised by this Court in the case of Lewis (supra).  The judgment delivered by Nutting JA contains the following passages:-

"331    It is important for this court to bear in mind what the constraints are which art. 26(1) imposes on this court in the exercise of its duties of reviewing the verdict of the Royal Court and the jurisprudence which has followed. In Aladesuru v. R. (1), the Privy Council was obliged to construe a statute in similar terms to art. 26(1) of the Court of Appeal (Jersey) Law 1961. Lord Tucker said ([1956] A.C. at 54-55) that the statute conferred the right only to "a limited appeal which precludes the court from reviewing the evidence and making its own evaluation thereof." In Att. Gen. v. Edmond-O'Brien (3), Lord Hoffmann quoted Lord Tucker's words with approval and emphasized that questions relating to the credibility of witnesses were for the Jurats. He said (2006 JLR 133, at para. 13): "It is not the function of the Court of Appeal to say that the evidence of the accused should have been accepted."

332   .......

333     The approach to the responsibilities of courts of appeal identified by Lord Hoffmann has a long history. As Lord Goddard said in R. v. Hopkins-Husson (30), a case decided at a time when the appellate process in England and Wales was subject to a statutory regime indistinguishable from that which still applies in Jersey (34 Cr. App. R. at 49):

".-‰.-‰. [T]he fact that some members or all the members of [this] Court think that they themselves would have returned a different verdict is .-‰.-‰. no ground for refusing to accept the verdict of the jury, which is the constitutional method of trial in this country. If there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this Court will not set aside the verdict of Guilty which has been found by the jury."

334     These dicta, as the Crown Advocate reminded us, have been followed in a number of cases including Styles v. Att. Gen. (43). This court said (2006 JLR 210, at paras. 33-34):

" .-‰.-‰. Lord Hoffmann's remarks are a salutary reminder that we must not stray beyond our limited role .-‰.-‰. Mr. Tremoceiro drew our attention to 20 respects in which he contended that the prosecution evidence was weak, flawed or inconsistent. In our view, in the light of Att. Gen. v. Edmond-O'Brien it would not be appropriate for us to sift through those points and attempt to evaluate them."

Added emphasis was given in Hamilton v. Att. Gen. (16), where this court said (2010 JLR 313, at para. 51):

"In [Edmond-O'Brien] the Privy Council emphasized the limitations in the scope of this court's function in appeals against conviction in criminal cases. Lord Hoffmann made it clear that in considering whether the verdict 'cannot be supported having regard to the evidence' we must be careful not to usurp the function of the Jurats .-‰.-‰." ...........

339     The appellant also relied on his contentions dated November 9th, 2012. In paras. 22-99, he summarized the evidence which he gave from the witness box on each of the counts on which he was convicted and invited this court to consider his account and to prefer it to the evidence given by the witnesses for the Crown. For the reasons which we have set out above, this would be a wholly impermissible exercise for us to undertake and we decline so to do. We echo the principles expressed in [Taylor v Law Officers 2007-08 GLR 207] (44) that fact finding is for the lower court and that issues of credibility, especially where a defendant is concerned, are for it to resolve."

Although made in the context of an appeal against the verdict of jurats in trial before the Inferior Number, the above statement of principle is equally applicable on appeal from the verdict of a jury. 

75.      In his written submissions, which he elaborated orally, Advocate Steenson argued forcefully that the complainant's version of events was inconsistent and unsatisfactory and there was no reasonable explanation on her part as to how the intercourse took place in these particular circumstances without her co-operation and hence consent, in that she must have had to move to assist the defendant in pulling down her pyjamas and penetrating her from behind.  He submitted that on the other hand the evidence of the defendant was clear, consistent and unshaken in cross-examination. 

76.      We have carefully considered his submissions.  However, as Advocate Steenson properly accepted, all the arguments which he sought to put before us were put fairly and squarely to the jury by Advocate Jones.  In particular Advocate Jones emphasised the defence case that sexual intercourse could not have taken place as described by the complainant without her active cooperation and assistance.  But as the authorities made clear, it is not for this court to read the transcript of evidence and determine how it would have decided the case.  The test is whether the verdict is one which a reasonable jury could not have arrived at.  As Nutting JA pointed out at paragraph 339 in the extract from Lewis -v- AG quoted above, issues of credibility, especially where a defendant is concerned, are for the jury to resolve. 

77.      This was a trial where the jury heard at length from both the complainant and the defendant, their respective versions were thoroughly tested in cross-examination and the Commissioner gave an impeccably fair summing up.  Having considered the transcript and the matters put forward by Advocate Steenson, we cannot conclude that this was an unreasonable verdict or one which cannot be supported having regard to the evidence. 

Conclusion

78.      As a number of the matters put forward by Advocate Steenson were reasonably arguable, we give leave to appeal but, for the reasons described above, we dismiss the appeal. 

Authorities

M-v- AG [2020] [JCA] 100.

Lewis and others v AG [2013] (1) JLR 325

Sexual Offences (Jersey) Law 2018

Criminal Procedure (Jersey) Law 2018

Lekkerkerker v AG [2014] (1) JLR 272

R-v- Bonython [1984] 38 SASR 45

AG-v- Bhojwani [2009] JRC 207A

Kennedy-v- Cordia (Services) LLP [2016] UKSC 6

Court of Appeal (Jersey) Law 1961