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||Neutral Citation Number:  EWCA Crim 3048
||Case No: 2006/05340B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT at NEWCASTLE
Her Honour Judge Bolton
||Royal Courts of Justice
Strand, London, WC2A 2LL
||18 December 2007
B e f o r e :
LORD JUSTICE MOORE-BICK
MR. JUSTICE WILKIE
THE RECORDER OF CHESTER
(sitting as a judge of the Court of Appeal, Criminal Division)
|| THE QUEEN
||- and -
Mr. Edward Fitzgerald Q.C. and Mr. Paul Taylor (instructed by Michael Henderson & Co) for the appellant
Mr. Bruce Houlder Q.C. and Mr. Timothy Gittins (instructed by Crown Prosecution Service) for the respondent
Hearing dates : 29 November 2007
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Moore-Bick :
- On the 28th September 2006 in the Crown Court at Newcastle before Her Honour Judge Bolton the appellant was convicted of one count of rape in respect of which he was sentenced on 8th December 2006 to imprisonment for public protection with minimum term of 4 years and 295 days after deducting time spent in custody on remand. He now appeals against sentence by leave of the Single Judge who referred his application for leave to appeal against conviction to the Full Court.
- The background to these proceedings can be described quite briefly. On 20th January 2006 the complainant was at a bar in the centre of Newcastle with her boyfriend, Lee Crawford, with whom she was then living. By the end of the evening she had had several drinks and described herself as 'quite drunk'. At some point she discovered that her handbag which contained her mobile phone, money, credit cards and the key to her flat had gone missing and shortly afterwards the two of them left the bar having failed to find the bag.
- The complainant thought that a friend of hers, George Dixon, or someone with him, might have taken her bag and almost the first thing she did on leaving the bar was to go to a telephone box to call his brother, Alan, (also a friend) to ask him to speak to George about it. However, having no money, she was unable to do so. She and Lee Crawford therefore set out for home in Gateshead on foot. Before long, however, the complainant had an argument with Crawford, whom she blamed for not having looked after her bag properly while she was away from the bar, and they parted, leaving her alone. By then it was about 1.00 a.m. and quite cold. As she was making her way towards Gateshead the applicant drew alongside her in his truck and offered her a lift, which she accepted. What happened next was the subject of considerable dispute at the trial.
- The complainant said that she had sat in the truck for a few moments while the appellant rolled a joint before he drove off saying that he was taking her home. However, she noticed that he was going the wrong way. When she asked him where he was taking her, he said that he was going to smoke the joint first and drove to some waste ground, where they talked while he smoked. She also shared some of the joint. At some point she had got out of the truck because she needed to urinate.
- The complainant said that after she got back into the truck the appellant leant across and kissed her. She said she responded briefly but then asked him to take her home. However, he continued to kiss her neck and although she told him to stop he picked up her legs and pulled them towards him. Then he tied her left wrist to the door with a black plastic cable tie and tried to do the same with her right wrist, but failed. Then the applicant penetrated her with his penis, she lying across the passenger seat and he sitting on her. As she struggled and tried to get loose he penetrated her again from behind. She said that he then looked for something under the driver's seat and she saw him holding a torch and a little handsaw. She was screaming and shouting. At that point she managed to free herself from the cable tie, but the appellant got on top of her and attempted to penetrate her again, before sitting in the passenger seat and masturbating himself. After that he threw her knickers at her and told her to put them on. She got out of the truck, but there was nowhere to run to. He told her to get back in and he would take her home. She did so because she felt there was nowhere else to go. The appellant drove off following her directions.
- The complainant said that during the course of the journey Lee's phone, which was in the pocket of her jacket, rang. She said she tried to press the 'Answer' button so that the caller could hear what was said, but the connection was lost. It rang for a second time and again she pressed the 'Answer' button, but after a short time she switched the phone off because she was frightened that the applicant would take it from her. The complainant said that she directed the applicant to a block of flats with which she was familiar, although she did not live there. When they got there the applicant talked to her for 10-15 minutes. She then left the truck and walked to the flats where she hid until she was sure he had gone. She turned the phone on again and began to make her way home. She said that her sister called and said that Lee had been searching for her. She asked her sister to call the police as she had been raped. A man approached her and offered to walk her home. On the way she flagged down a passing police car and reported what had happened. The doctor who examined her later that day noted that she had been crying and was upset; there were a number of bruises and abrasions on various parts of her body.
- The applicant gave a very different account of the incident. He admitted that he often drove around at night looking for girls for sexual purposes and that he had gone out that evening with that in mind. He saw the complainant in some distress and when he offered her a lift she jumped into his vehicle. She said that she needed to relieve herself so he drove to a piece of waste ground. They both relieved themselves and he lit a cigarette. The complainant, he said, then knocked the cigarette out of his mouth and started kissing him. She wrapped her right leg round him and asked him for sex. They got back into the vehicle, he put on a condom and they had sexual intercourse. The complainant had pulled her knickers halfway down and he took them off. He agreed that he had penetrated her from the front and then from behind. However, there was not much room in the truck and he could not get comfortable. He masturbated and the complainant masturbated herself, rubbing herself with the handle of a torch which was in the truck. After he had ejaculated he took the torch from the complainant who then asked him to tie her up. There were cable ties already attached to the door on the passenger side; she put her left wrist in one and asked him to tie her right. He said he was not interested in anything of that kind and she 'went off it'. The applicant said that after that the two of them talked for some time during which she spoke about her boyfriend and her disabled child. At one point her phone rang and the complainant shouted 'Fuck off' down the phone. He then drove her to a block of flats where she asked him to drop her off.
- Faced with two such different accounts, the real problem facing the jury was whom to believe. It is not surprising, therefore, that a good deal of attention was directed towards such aspects of the evidence as tended to support the credibility of one or other of the participants. The prosecution called evidence from a Mr. Mark Vickers who said he had come across the complainant using a mobile phone in a loud and hysterical way. He said she appeared very agitated and upset and as he walked past her he heard her say 'I have been raped'. He saw she was crying and clearly very upset and he offered to walk her home. She told him she had been dragged into a truck by a man who had tied her wrists. A police witness, P.C. Long, confirmed that the complainant had flagged down his car and asked for help. He described her as being in a state of hysteria. She had clearly had quite a lot to drink, but said that she had been raped.
- The complainant's sister, Michelle, said that she had tried to ring the complainant after she had been alerted by Lee Crawford that she had not got home. After many attempts the complainant answered. She was hysterical and said that she had been raped.
- When the applicant was arrested a black Maglite torch about 30 cm long was found in his vehicle. The complainant's DNA was found on the handle. We shall return to that aspect of the evidence later in this judgment. In addition, there was evidence from Lee Crawford that on one of numerous occasions on which he called her she had answered the phone and told him that she had 'scored' with someone and had then put the phone down.
- At the trial the defence applied under section 41 of the Youth Justice and Criminal Evidence Act 1999 for leave to call evidence of certain aspects of the complainant's previous sexual behaviour which it was said tended to support the conclusion that she had been willing to have sexual intercourse with the applicant on the night in question. The judge allowed Alan Dixon, who had also been in the bar that evening, to give evidence that the complainant had jumped into his arms and put her legs round him when they had met that evening, simulating sexual movements and kissing him in a passionate way, and had done the same with his brother, George. The judge also allowed the defence to call evidence from a Stanley Williams who said that he had had sexual intercourse with the complainant on one occasion and that she had asked him to tie her hands to the bed.
- Against that background we now come to the grounds of appeal against conviction.
(i) The evidence of Alan Dixon
- The first ground of appeal arises from the judge's rejection of an application to adduce evidence from Alan Dixon of a sexual relationship with the complainant some two months or so before the events with which we are concerned. The application arose out of the following exchange which took place between the complainant and counsel for the defence in the course of cross-examination:
Q: What do you mean, realised that was not what you wanted?
A: Well, I don't want sex with a stranger. I have got a – I had a boy – I've got a boy – well, I finished him, but I know that me and Lee would a'getten back together straight away. I loved him, he loved him [sic], we were starting a family.
. . . . . . . . . .
Q: Because of that?
A: Well, I wouldn't go with any stranger.
Q: Or anybody, apart from Lee?
A: Or anybody – anybody at all.
- The complainant had said earlier that she had been living with Lee Crawford for about two months. Alan Dixon had provided a statement in which he said that he had had sexual intercourse with the complainant a number of times during that period. In particular, he said that at around Christmas they had had sexual intercourse in a local car park; they could not go to her house since Lee was there looking after her daughter. At the trial the defence sought leave from the judge to adduce that evidence to rebut the complainant's assertion that she would not have sexual intercourse with anyone else while she was in a steady relationship with Lee Crawford. The judge rejected the application; she thought that the evidence had no probative value and that to admit it would drive a coach and horses through the provisions of section 41. The first ground of appeal is that the judge was wrong to exclude that part of Alan Dixon's evidence and that the conviction is unsafe as a result.
- Section 41 of the Youth Justice and Criminal Evidence Act provides (so far as is material to this case) as follows:
"(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination,
by or on behalf of any accused at the trial about any sexual behaviour of the complainant.
(2) The court . . . . . may not give such leave unless it is satisfied—
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
. . . . . . . . . .
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused,
. . . . . . . . . .
that the similarity cannot reasonably be explained as a coincidence.
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question—
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant;
. . . . . . . . . .
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant . . . . ."
- Section 42 provides as follows (again so far as is material to this case):
"(1) In section 41—
(a) "relevant issue in the case" means any issue falling to be proved by the prosecution or defence in the trial of the accused;
. . . . . . . . . .
(c) "sexual behaviour" means any sexual behaviour or other sexual experience . . . . .;"
- Mr. Fitzgerald Q.C. submitted on behalf of the applicant that the complainant's assertion in cross-examination that at the time in question she would not have had sexual intercourse with anyone other than Lee Crawford was evidence adduced by the prosecution about her sexual behaviour within the meaning of subsection (5). The evidence of Alan Dixon ought, therefore, to have been admitted because without it the jury were liable to be misled about the complainant's sexual inclinations and their conclusion about whether she had consented to sexual intercourse with the applicant was thus rendered unsafe. Alternatively, he submitted that the sexual activity with the complainant described by Alan Dixon was in a number of respects so similar to that which was said to have taken place between the complainant and the applicant as not to be reasonably capable of being explained as a coincidence. The judge should therefore have given leave to adduce his evidence under subsection (3)(c)(i).
- Before considering these submissions it is necessary to refer to the decision of the House of Lords in R v A (No.2)  UKHL 25,  1 AC 45,  2 Cr.App.R. 351 which underpinned the whole of Mr. Fitzgerald's argument. That case differed from the present insofar as it concerned an application by the applicant for leave to adduce evidence that he had himself been involved in a consensual sexual relationship with the complainant during the three weeks prior to the alleged rape. Their Lordships held that under section 41(3)(a) of the Act, construed in accordance with section 3 of the Human Rights Act 1998, the test of admissibility is whether the evidence sought to be adduced is so relevant to the issue of consent that to exclude it would endanger the fairness of the trial required by Article 6 of the European Convention on Human Rights. The wider importance of the case, however, lies in the recognition that the importance of protecting complainants from indignity and humiliating questions to which section 41 is directed must ultimately give way to the right to a fair trial and that the statute must, insofar as possible, be construed so as to achieve that end. We accept Mr. Fitzgerald's submission that the principle is of general application; how it operates in relation to other parts of the section will have to be determined as the need arises. As the court observed in White  EWCA Crim 946 (unreported), allegations of a previous consensual sexual relationship with the accused raises considerations of a different nature from those raised by allegations of a previous consensual relationship with a third party.
- We accept that the complainant's evidence that at the time in question she was faithful to her boyfriend and would not have sexual intercourse with anyone else amounted to evidence about her sexual behaviour, but there remains the question whether it was evidence adduced by the prosecution within the meaning of subsection (5). Mr. Fitzgerald submitted that any evidence given by a prosecution witness, whether in chief or in cross-examination, fell within the scope of the subsection. He argued that it was necessary to construe the subsection in that way because it might adversely effect the fairness of the trial if a defendant were prevented from calling evidence to rebut an unexpected assertion made by a prosecution witness in cross-examination. He also sought support from the language of section 101(1)(b) of the Criminal Justice Act 2003 which (in relation to evidence of bad character) expressly refers to evidence "adduced by the defendant himself or given in answer to a question asked by him in cross-examination and intended to elicit it." He submitted that that reflects a natural distinction between calling a witness to give evidence in support of one's own case and drawing from a witness called by the other side evidence which supports one's own case or damages the case of the person calling him. The use of the word "adduce" alone in section 41(5) indicates an intention that it should embrace any evidence given by a witness called by the prosecution which supports its case.
- The starting point for the discussion is the natural meaning of the words used in subsection (5). In our view the expression "evidence adduced by the prosecution" naturally refers in this context to evidence placed before the jury by prosecution witnesses in the course of their evidence in chief and by other witnesses in the course of cross-examination by prosecuting counsel. It does not naturally extend to evidence obtained from prosecution witnesses by the defence in the course of cross-examination. In this regard we do not think that the applicant derives any assistance from the language of section 101(1)(b) of the Criminal Justice Act 2003; if anything, the language of that subsection tends to suggest that section 41(5) applies only to evidence given by prosecution witnesses in chief. We are unable to accept the submission that it extends to all evidence given by the prosecution witnesses, however it comes to be given. However, whether, as Mr. Fitzgerald argued, it should be given a more liberal interpretation in this context is another matter.
- In White this court doubted whether the decision in R v A (No.2) supports the conclusion that section 3 of the Human Rights Act justifies a wider reading of section 41 than would be justified by ordinary canons of construction where the evidence which the accused wishes to adduce relates to the behaviour of the complainant with men other than himself. In the light of that observation Mr. Houlder Q.C. suggested that the decision in R v A (No.2) is relevant to the construction of section 41(3)(c) alone and to applications to adduce evidence of sexual relations between the complainant and the accused. However, we do not think that is the case. Their Lordships were not, of course, concerned with the provisions of section 41(5), but they clearly attached the importance to the need to construe section 41(3)(c) in a way which will ensure a fair trial. That, as we see it, is the fundamental principle underlying their decision and accordingly we think that in order to ensure a fair trial there may be cases in which the accused ought to be allowed to call evidence to explain or rebut something said by a prosecution witness in cross-examination about the complainant's sexual behaviour which was not deliberately elicited by defence counsel and is potentially damaging to the accused's case. For that reason we would accept that subsection (5) has to be read in the somewhat broader sense that its language might otherwise suggest in order to accommodate such cases.
- We have already set out the relevant exchange between the complainant and defence counsel. The complainant had said that she stopped kissing the applicant because "that was not what she wanted" and counsel then pursued the matter, asking what she meant and inviting her to say that she would not have sexual relations with anyone other than Lee Crawford. We do not suggest that counsel was deliberately seeking to trap the complainant into saying something that would expose her to cross-examination about her relationship with Alan Dixon, but, even on the more liberal interpretation of subsection (5) which we accept should be adopted, we are unable to accept that this was evidence adduced by the prosecution rather than by the defence. In our view, therefore, the argument fails on this ground alone.
- It is convenient at this point to consider the alternative argument based on subsection (3)(c)(i). Mr. Fitzgerald identified the following similarities between the circumstances in which Alan Dixon described having sexual intercourse with the complainant and the circumstances in which the applicant said that he had had sexual intercourse with her: the complainant herself instigated sexual activity; the activities took place outside in relatively public places; they took place in winter; and they took place while she was involved in a relationship with Lee Crawford. Mr. Fitzgerald drew our attention to various passages in the speeches in R v A (No.2) which emphasise that section 41(3)(c) is to be given a meaning which is compatible with the Convention right to a fair trial and that the evidence does not need to exhibit a striking similarity between the complainant's behaviour on the occasions concerned for the evidence to be admissible. That we accept, but we do not think that the similarities identified by Mr. Fitzgerald cannot reasonably be explained as a coincidence, having regard to the background to this case; nor, for the reasons to which we are about to come, do we think that the evidence was truly probative in relation to the issue of consent. We therefore reject the argument that the evidence was admissible under this section.
- However, in our view each of the applicant's arguments must in any event fail because the case cannot be brought within the scope of subsection (2)(b). Mr. Fitzgerald submitted that the evidence of Alan Dixon demonstrated that the complainant was willing to have sexual relations with someone other than Lee Crawford; that she was determined to have sexual intercourse with someone that evening, perhaps to spite him; that she tried to speak to Alan Dixon for that purpose; and that, if necessary, she was quite willing to have sexual relations with a stranger.
- The judge refused leave to adduce the evidence of Alan Dixon because she did not consider that it had any direct bearing on the issue of consent. In our view she was right to do so. The fact (if it be the case) that the complainant wanted to have sexual intercourse that evening and was willing to have it with someone other than Lee Crawford does not tend to prove that she was willing to have sexual relations with a complete stranger who happened by chance to offer her a lift as she was walking home. Although his evidence and other evidence in the case tended to show she had a promiscuous nature among quite a wide circle of friends, there was nothing in it to suggest that she was prepared to pick up strangers off the street. Alan Dixon's evidence was not, therefore, probative in relation to the issue of consent in this case and in our view the exclusion of his evidence was unlikely to, and does not in fact, render the jury's conclusion on that issue unsafe.
- For all these reasons we refuse leave to appeal on this ground.
(ii) The forensic evidence
- The torch recovered from the applicant's truck was tested for DNA. In the light of the information available to the prosecution and the defence following investigations carried out by forensic scientists for each party it was decided that the relevant evidence could be given by a police witness called by the prosecution. Accordingly, on Friday 22nd September the officer in charge of the inquiry, D.C. Wakely, was asked to, and did, confirm that the torch had been sent for forensic examination and that from swabs taken from the handle end a DNA profile was obtained which matched that of the complainant. Almost as soon as that evidence had been given a question was received from a member of the jury asking whether there was any way in which the DNA found on the torch could be have been transferred from the applicant's hand. The matter was left at that point for the parties to consider.
- As a result of the jury's question the prosecution sought advice from its forensic scientist, Mr. Chapman. On Monday 25th September he provided a supplementary report by fax in the following terms:
"I have been asked to comment upon the possibility that the cellular material present on the torch, item DW6, and attributable to [the complainant] could have been deposited as a result of secondary transfer, either from the fingers of someone who had digitally penetrated her vagina and then handled the torch, or from the outside of a condom worn by someone who had had vaginal intercourse with [the complainant], then handled the outside of the condom and then handled the torch. In my opinion, both of these scenarios could explain the presence of the cellular material on the torch, as I would expect a significant amount of cellular material to transfer to any object penetrating the vagina and if this object were to come into contact with another object then cellular material could be transferred to it (i.e. through secondary transfer)."
That report was read to the jury during the morning of 25th September and in the light of it a formal admission was made in the same terms.
- On 26th September Mr. Chapman prepared a formal report relating to the information he had sent by fax the day before. In it he described the same two possible mechanisms of transfer, describing them as "secondary" and "tertiary" respectively. The significant part of that report for present purposes (with major differences underlined) are as follows:
"I have also been asked to comment upon the possibility that the cellular material present on the torch and attributable to [the complainant] could have been deposited as a result of secondary or tertiary transfer, rather than primary transfer from the torch being placed in contact with the vagina. Two scenarios have been suggested to me, either transfer from the fingers of someone who had digitally penetrated [the complainant's] vagina and then handled the torch (secondary transfer), or transfer from the outside of a condom worn by someone who had had vaginal intercourse with [the complainant], then handled the outside of the condom and then handled the torch (technically this would be tertiary transfer). In my opinion, both of these scenarios could plausibly be advanced as possible explanations for the presence of the cellular material with a DNA profile matching [the complainant's] on the torch. Regarding digital penetration, I would expect a significant amount of vaginal material to transfer to the fingers when penetrating [the complainant's] vagina and if the same fingers were to subsequently come into contact with the torch whilst still wet with vaginal secretions, then cellular material could be transferred to it through secondary transfer. Similarly, if a condom was worn and the person wearing it had penetrative oral, anal or vaginal intercourse with [the complainant], then I would expect the transfer of cellular material to the outside surface of the condom. If a person removed or handled the surface of the condom whilst it was moist or wet then material could transfer to that person's hands/fingers. If the torch was handled shortly thereafter, then some of that wet material could be transferred to it. As this mechanism involves two intermediate vectors (i.e. first the condom then the fingers/hand) then the propensity would be to transfer smaller quantities of material than a mechanism requiring only one vector (the fingers/hand). For this reason, whilst plausible, I regard a tertiary mechanism as (a priori) less likely."
- That report, although signed on 26th September, was not sent to the Crown Prosecution Service until some weeks after the conclusion of the trial and was therefore not seen either by any of those who had conduct of the prosecution, including prosecuting counsel. It was served on the defence under a notice of additional evidence dated 2nd November 2006.
- Following the receipt of Mr. Chapman's supplementary report the applicant's solicitors consulted their own forensic scientist, Mr. Wilson, who broadly agreed with Mr. Chapman's opinion. Later, however, they instructed another forensic scientist, Dr. Denise Syndercombe Court, to carry out a fresh examination of the torch. In a report dated 22nd October 2007 she identifies eight different locations on the torch from which she took swabs and the results of DNA analysis carried out on the material she obtained. She reached the following conclusions:
(i) that the first four areas swabbed, which consisted of the glass, head, switch and upper third of the shaft, all produced indications of a mixture of DNA from at least two people. There was no reliable indicator that the complainant had contributed to any of the samples;
(ii) that two areas in the middle third of the torch indicated DNA from more than one person, but the bulk of the components matched those found in the complainant's profile and in the area nearer the base she detected all but one of the components of the complainant's DNA. She considered that to be very strong evidence of the presence of the complainant's DNA;
(iii) that in the final two areas, being the base of the torch and the bottom of the handle, most of the DNA components matched those of the complainant;
(iv) that evidence for the complainant's DNA being present appeared to increase from the middle third of the grip area down to the base.
- Dr. Syndercombe Court is unable to say in relation to any profile whether the mechanism of transfer was primary, secondary or tertiary deposition, but she does say that fewer components will generally be revealed with each successive transfer. In those instances where a full profile had been obtained it could have resulted from primary, secondary or tertiary transfer by any of the mechanisms considered by Mr. Chapman. She also expresses the opinion that the deposit on the bottom third of the torch was likely to have been rich in cells since even after the applicant's expert, Mr. Wilson, had swabbed the area, enough material remained for her to be able to find a large proportion of components matching those of the complainant. She considers her findings to be completely consistent with the applicant's account, but cannot discount the other mechanisms of transfer described by Mr. Chapman.
- The evidence concerning the torch was of some importance to the applicant's case. He had referred in his interview to the complainant's using the torch to masturbate herself after they had had sexual intercourse and it was for that reason that it had been sent for forensic analysis. The complainant denied having used the torch in that way; she said that after the applicant had penetrated her from behind he had looked for something under the seat and that she saw him bring out a torch. She did not say that he had used it on her himself, but she did say that she did not know exactly what he had been doing while he was behind her.
- Mr. Fitzgerald submitted that the presence of the complainant's DNA on the torch remained a strong point for the defence, because there was no positive explanation for it other than the one he gave. However, that point was seriously and unfairly undermined by the question from the jury and by the prosecution's failure to disclose Mr. Chapman's report of 26th September which in turn led the defence to make what was in fact a misleading admission. In support of that submission he relied on a statement from leading counsel who appeared for the applicant that he would not have agreed to make an admission in the terms we have described if he had seen Mr. Chapman's supplementary report. He also relied on Dr. Syndercombe Court's recent report as containing fresh evidence that cast doubt on the safety of the conviction.
- In his report dated 8th June 2006 the applicant's forensic scientist, Mr. Wilson, stated that he had swabbed the base of the torch and the handle area up to 10 cm from the base. He found a major female DNA profile and expressed the opinion that his findings were consistent with the torch having been inserted into a vagina, though they did not demonstrate that conclusively. Since he did not have a DNA sample from the complainant he could not determine whether the DNA originated from her or from someone else. It was on that basis that D.C. Wakefield gave the evidence to which we referred earlier.
- It is unfortunate that until the juror asked the question neither the prosecution nor the defence appears to have considered the possibility of secondary transfer. Once the question had been asked, however, it had to be answered. It is clear that the information given to the jury on 25th September accurately reflected the contents of the fax that had been received from Mr. Chapman. We think that Mr. Fitzgerald is right in saying that a copy of Mr. Chapman's supplementary report should have been disclosed to the defence as soon as possible, but there is no evidence that it was deliberately suppressed and the only question we have to consider, therefore, is whether it added significantly to what it he had said in his fax and whether the admission based on the fax was misleading, as has been suggested.
- Although Mr. Chapman's report set out the matter in greater detail than his fax, its content was not in our view significantly different. He identified the same two indirect methods of transfer and although he described one as 'secondary' and the other as 'tertiary' (rather than describing them both as 'secondary' as he had in the fax), that was purely semantic and did not involve a change any of substance. The only respect in which it might be said that the report added something to the fax was in expressing the opinion that the tertiary mechanism was a priori less likely because it required two vectors, namely, the condom and the hand. That was not said to be the result of any peculiar properties of the material in question; in truth it was more a matter of common sense than of scientific expertise and in our view would be within the ordinary experience of the jury.
- For these reasons we are unable to accept that the admission was misleading or that the failure to make Mr. Chapman's report available to the defence as soon as it had been signed undermines the safety of the conviction.
- The application to adduce the evidence of Dr. Syndercombe Court raises rather different issues. By virtue of section 23 of the Criminal Appeal Act 1968 the court may receive fresh evidence in support of an appeal if it considers it necessary or expedient in the interests of justice to do so. However, in deciding whether it should do so it must have regard (among other things) to whether it appears to the court that the evidence may afford any ground for allowing the appeal and whether there is a reasonable explanation for the failure to adduce it at trial. The essential thrust of Mr. Fitzgerald's argument was that Dr. Syndercombe Court's findings concerning the distribution of the cellular material on the torch are, as she says, completely consistent with the applicant's account of events. If that is so, it raises the question why no one considered the question of distribution at or before the trial and why such evidence as there was on the point was not led. It is also necessary to look a little more closely at what Dr. Syndercombe Court does and does not say about her findings.
- At trial the defence had in its possession evidence from Mr. Wilson that he had swabbed the lower 10 cm of the torch and had obtained a full female DNA profile from nucleated epithelial cells, being the type of cells that line moist body cavities. That evidence, both as to the nature and location of the material, was consistent with the applicant's account of how the complainant had used the torch, but it was not put before the jury, probably, it seems, because the only issue was thought to be whether the torch had been in contact with the complainant at all. However, once the question of secondary transfer was raised the distribution of the cellular material became more relevant. Mr. Wilson's evidence was not inconsistent with secondary or tertiary transfer, but it might have been said to point more strongly in favour of primary transfer in circumstances described by the applicant. However, no attempt was made to introduce it.
- Dr. Syndercombe Court's evidence is really an extension and refinement of the evidence produced by Mr. Wilson. What it tends to show is that the major deposit of the complainant's cellular material was to be found on the lower third of the handle of the torch, that a modest amount of material that could have come from the complainant was found on the central third and that no material emanating from the complainant was found on the top third, including the head and switch. That does not add significantly to what Mr. Wilson had found, apart from the fact that it provides some positive evidence tending to show that there had been little or no secondary or tertiary transfer to the upper part of the torch.
- Although at the end of the day Dr. Syndercombe Court is able to say that the evidence is completely consistent with primary transfer in the manner described by the applicant, she is not able to say that it is inconsistent with tertiary transfer as a result of the applicant's having touched the condom after intercourse and before picking up the torch. Her observation that it would seem reasonable that the applicant would grip the torch by the middle of the handle rather than the bottom is not a matter of expert evidence and must depend on where the torch was at the time in relation to the applicant's body. In our view that is a matter the jury could be expected to appreciate for themselves. Moreover, it must not be forgotten that this is only a part of a much larger body of evidence before the jury, different parts of which pointed to different conclusions. The jury's task was to reach a decision on the facts in the light of the evidence as a whole. The evidence of the complainant and the applicant about what had occurred in the truck that night was in some respects confused and did not enable the jury confidently to rule out any of the possible mechanisms of transfer, including the possibility that the applicant had used the torch on the complainant. In those circumstances other aspects of the evidence may have assumed greater importance.
- Ultimately, as Mr. Fitzgerald reminded us, the question for this court is whether the conviction is safe. If we were persuaded that Dr. Syndercombe Court's evidence raised serious questions about the safety of the conviction we should have been willing to receive it, notwithstanding that evidence to broadly the same effect could have been, but was not, called at the trial. However, for the reasons we have given we are not persuaded that that is the case and for both those reasons we decline to receive it. In those circumstances leave to appeal on these two grounds is refused as well.
(iii) The reporter's evidence
- In May 2007 an article appeared in the Daily Mirror, together with photographs of the complainant and the applicant, in which the complainant described her experience on the night in question. In some respects the account that appeared in the paper differed from that given by the complainant at the trial. The applicant's solicitors therefore took steps to obtain from the reporter her notes of her interview with the complainant and after some initial reluctance the reporter agreed to read her notes to them over the telephone. A transcript of their conversation was then prepared and was made available to the court.
- Mr. Fitzgerald invited us to receive that evidence of what the complainant had said to the reporter under section 23 of the Criminal Appeal Act 1968 on the grounds that it satisfied all the criteria that the court is required to consider under subsection (2) and because it was necessary in the interests of justice to do so. He submitted that both the discrepancies between the account given by the complainant in her evidence and the account given to the reporter and the discrepancies between her account of the interview and that of the reporter were so marked as to undermine her credibility very significantly.
- We have no difficulty in accepting that the factors mentioned in paragraphs (a) and (d) of subsection (2) are satisfied in this case, particularly since the article was not researched or written until after the conclusion of the trial. We also accept that evidence of the complainant's conversation with the reporter (had it already taken place) would have been admissible at the trial in one form or another in order to challenge the complainant's credibility. What we cannot accept, however, is that the discrepancies between the complainant's accounts of the incident or the discrepancies between her account of the interview and that given by the reporter are of such importance as to undermine significantly her credibility in relation to the essential aspects of the case and so render the conviction unsafe. Although the account given in the newspaper article appears to be at odds in some respects with the complainant's evidence, the reporter's notes are fragmentary and not everything that appears in the article is supported by a written note. It is therefore difficult to be sure exactly what was said. In the end it came down to little more than the following three points: that the complainant had told the reporter that the applicant had locked the doors of the truck, something she had not said in evidence; and that the complainant said the reporter had come to see her at home, whereas the reporter was adamant that she had interviewed the complainant only over the telephone; that the claimant says she was paid £300 for her account, whereas the reporter says she was offered £400. As to the first of these, we do not think that the discrepancy is of such weight as to suggest that the conviction is unsafe, given the fact that the complainant was giving an account of events some time after the trial in what must have been relatively relaxed circumstances. As to the second, it was common ground that a photographer had visited the complainant to take her picture and it is possible, to put it no higher, that he was accompanied by a female representative of the newspaper. In any event, there clearly exists a possibility of confusion in relation to something that is entirely peripheral to the case. As to the third, we can see no reason why the complainant should lie about a matter of that kind and, if she is wrong, we do not think that that cast serious doubt over her credibility in relation to the questions the jury had to decide. In these circumstances we decline to receive this new evidence and we refuse leave to appeal on this ground also.
- The judge imposed a sentence of imprisonment for public protection on the appellant and fixed the minimum term at 4 years 285 days after taking into account time spent in custody on remand. On his behalf Mr. Fitzgerald submitted, first, that the judge was wrong to find that the appellant posed a significant risk of causing serious harm to members of the public as a result of the commission of further specified offences, so that a sentence of imprisonment for public protection was wrong in law; and second, that the notional determinate sentence of 10 years' imprisonment, on which the judge based the minimum term, was manifestly excessive.
- Prior to this conviction the appellant was a man of good character with a stable family background; he had not demonstrated any pattern of offending which could inform the judge's assessment of his dangerousness. However she had the benefit of a pre-sentence report dated 17th October 2006 from Michael Norton, a probation officer, a Sex Offender Team Assessment Report dated 17th October 2006 from Mark Ryland, another probation officer, and a psychiatric report dated 6th December 2006 from Dr. K.L. Shrestha, a consultant psychiatrist with the Northumberland Tyne and Wear NHS Trust.
- The conclusion of the author of the pre-sentence report was that the appellant remained at high risk of repeating the sort of offence of which he had been convicted, a conclusion he reached as a result of the inference he drew from the account which the appellant gave of his nocturnal activities. According to the appellant, he would go for a late night drive a couple of times a week, partly in the hope of meeting women with whom he could have a casual sexual relationship. He found it difficult to comprehend such behaviour was highly unusual and might possibly be perceived as predatory in intent.
- The author of the pre-sentence report also referred to two previous incidents involving the appellant. The first occurred in September 2003 when he was stopped by police when driving late at night. He admitted that he had been "cruising". The second was his acquittal at trial in April 2004 of a serious sexual offence. The author of the report was under the impression that the appellant's defence in that case had been that the woman had consented to sexual intercourse, whereas his case had in fact been that the allegations had been fabricated and that nothing had happened. He went on to say that:
"Despite the context of the trial Mr Hamadi did not modify his behaviour and continued his "cruising" activity; behaviour showing that he either has a preoccupation with sex or that he enjoyed the associated risks inherent in such behaviour."
- He concluded that:
"One of his main leisure activities involves driving two or three times a week late at night for the purposes of locating young often vulnerable women with a view to having a casual sexual liaison. Mr Hamadi manifests, I feel, highly predatory behaviour in this regard and is prepared to take risks with the women he meets in order to satisfy his own desires. Mr Hamadi demonstrates an intolerance of boredom and it is, I believe, only through his encounters with female strangers that he can achieve the excitement or stimulation he craves. It may appear that this behaviour has now become habit forming and that Mr Hamadi presents an ongoing risk of harm to women in this regard were he not to change his behaviour."
- In his assessment of the risk of harm the author of the report said as follows:
"It is my opinion that the risk of further offending is high . . . he was capable of using force to subjugate his victim and to use objects such as cable ties to restrain her . . . . . he appeared either unwilling or unable to properly interpret that his actions in regard to seeking out casual sexual relations might be considered "risky". I believe Mr Hamadi has developed a pattern of behaviour where he targets, and then undertakes to win the confidence of, vulnerable young women with a view to having a sexual liaison in order to satisfy his own impulses without showing much insight to the consequences of his actions in regard to the women he meets. . . . . In short Mr Hamadi would appear to take calculated steps to minimise the chances he could be subsequently traced and contacted.
Given that Mr Hamadi does not view his behaviour as a problem or accept that he has committed any offence against the victim, given his relatively young age where research evidence suggests he may present potentially as a sexual offender in the long term to come and accounting for the nature of his offence, I assess his risk of causing harm to the public as high."
- The author of the Sex Offender Team Assessment Report described in paragraph 8 the appellant's distorted attitudes, making reference to his "cruising" for sex as "acceptable, common and just a bit of fun". At paragraph 10 he describes how the appellant informed the author of a number of steps he took to prevent any of these women being able to contact him, find out where he lived, or pose any threat to his marriage or family unit. Furthermore, following the trial in 2004 the appellant admitted that he had not modified his behaviour in any way. In other words, he continued to cruise town centres looking for sex, regardless of the fact that it had given rise to allegations against him of having committed a serious sexual offence. He says:
"Either he ignored the obvious problems and risks in this, or continued because he enjoyed those risks or because he fails to effectively manage his sexual urge to do so."
- The author of the report said in paragraph 12:
"Denial of a sexual offence is not considered to be an indicator of increased risk in its own right. However, it is a stance which makes it very difficult to gather evidence about attitudes beliefs and behaviours that have a direct bearing on risk. Therefore . . he will not be able to work on the issues that have contributed to the commission of this offence and cannot, therefore, be helped to reduce the risk of another such offence being committed . . . . therefore dynamic risk factors suggest the risk of offending remains high."
- In paragraphs 12.3 and 12.5 of his report Dr. Shrestha said:
"He told me that he has had casual sex with women. He admitted that he had gone for a drive at night which is a favourite pastime but also in part to meet women with whom he could engage in sexual activity. His wife has no knowledge of this activity
. . . . . . . . . .
He appears to have a high sex drive."
- In paragraph 18 of the same report Dr. Shrestha said:
"He is deeply ashamed about his behaviour and accepts that he acted immorally. He is very remorseful of his action and seemed determined that he would not act in such a way in the future. He is willing to accept any help to put himself out of such situation.
I appreciate the concern the court may have of the possibility of re-offending and protection of the public, however, I believe that he has learned his lesson and the chance of re-offending is low."
- In sentencing the appellant the trial judge described in some detail the circumstances of the offence and indicated that she had read the victim impact statement which demonstrated that the offence had had a dreadful effect on the complainant, one she would probably carry for life. She then said as follows:
"You yourself admit that for some years you were in the habit of driving round these streets late at night looking for casual sex. This seems to me to be a pattern of behaviour . . . You are apparently now sorry, but only for your behaviour which you perceive as immoral because you have a wife and family. You continue to deny the offence . . . . I have taken into account all of the matters I am required to by reason of section 229(2) of the Act and of course I have watched you give evidence and observed you throughout the trial. I am quite satisfied that to your friends and family you appear to lead a thoroughly respectable life, but in my judgment there is a darker side to your character which led to the commission of this offence. You are a sexual predator. I am satisfied that your targeting of [the complainant] that night was solely for the purposes of your own gratification. Whether she consented or not, you were determined to have sexual intercourse with her. When it was clear to you that she would resist you tied her up in order that you have your way. I agree with the author of the pre-sentence report. You manifest highly predatory behaviour and you are prepared to take risks in order to satisfy your own desires."
- She then referred to the appellant's acquittal in 2004 and said:
"At least in my judgment [that] should have made you think carefully about the risks you were taking in pursuing your nocturnal activities with young women even if it were right that she flagged you down on that occasion. Instead that behaviour continued and culminated sadly in this violent offence of rape. I do not agree with the opinion of Dr. Shrestha. He says that you are deeply ashamed about your behaviour and accept that you acted immorally, that you are remorseful of your action and you are determined not to behave that way in the future, and you are willing to accept any help to put yourself out of such situations. In his appreciation of the concerns the court may have, he believes that you have learnt your lesson and your chance of re-offending is low. You are remorseful about the fact that you are unfaithful to your wife and you acted immorally and against your family values and you took advantage of a woman who at the time was vulnerable and in a distressed state. That is still far away from an admission of your true culpability in this case and the features that he describes as preventing you from re-offending did not prevent you from offending on this occasion. I have formed the clear view that at present you do pose a significant harm to young girls. I cannot say when that risk will be diminished sufficiently to allow you to be released into the community and accordingly I pass a sentence of imprisonment for public protection."
- Mr Fitzgerald criticised the judge for this assessment. He said that she was wrong to discount the evidence of Dr. Shrestha and that she was wrong to rely on the past pattern of behaviour as supporting her conclusion on dangerousness when there was no evidence that this had previously involved any element of coercion or non-consensual sex. He also criticised her for relying on the pre-sentence report, which contained a serious error in attributing the appellant's acquittal in 2004 to a defence of consent rather than a defence of fabrication. He submitted that the judge was in error in assessing dangerousness by reference, amongst other things, to the fact that the appellant refused to admit his guilt.
- Mr Fitzgerald drew our attention not only to the case of Lang  EWCA Crim 2864,  2 Cr.App.R.(S) 13, in which this court gave extensive guidance in relation to the principles to be applied in assessing dangerousness, but also to the case of Xhelollari  EWCA Crim 2052 in which the court held that the perceived vulnerability of the victim and the unwillingness of the appellant to acknowledge guilt, on which alone the risk assessment in the pre-sentence report was based, did not provide an adequate basis for a finding that there was a significant risk from serious harm from future offending so as to justify the imposition of an indeterminate sentence.
- Having reminded ourselves that in Johnson  Cr.App.R.(S) 112 this court said that it will not normally interfere with the conclusions reached by a sentencer who has accurately identified the relevant principles and applied her mind to the relevant facts, we consider that the judge was entitled to find that the appellant was dangerous within the meaning of section 225(1)(b) of the Criminal Justice Act 2003. She had the advantage of seeing him give evidence at the trial and was in a very good position to make an assessment of him. Furthermore, although the author of the pre-sentence report may have misunderstood the nature of the appellant's defence which led to his acquittal at the earlier trial, it was, nonetheless, significant that he continued to behave in a way that had put him at risk of a very substantial prison sentence.
- In our judgment the judge was entitled to approach with some scepticism the appellant's expressions of shame, remorse and intention to change to which Dr. Shrestha referred and to prefer the assessments made by the authors of the pre-sentence report and the Sex Offender Team Assessment Report. We do not think she treated his continued unwillingness to admit his true culpability as a reason in itself for finding him to be dangerous; rather, we think she was simply reminding herself that it would be likely to prevent him from obtaining the help needed to address the underlying causes of his behaviour. For all these reasons we do not think that this case is comparable to Xhelollari, or that it was wrong in principle for the judge to pass a sentence of imprisonment for public protection.
- When fixing the minimum term the trial judge took as her starting point a period of 8 years' imprisonment to reflect the violent nature of the rape upon a vulnerable young woman. She then increased it to take account of what she regarded as a further aggravating factor in the form of an element of abduction, thereby arriving at a notional determinate sentence of 10 years. In our judgment the judge erred in taking that course. We accept that there was in this case an element of abduction or detention, but it was not substantial and we do not think that the various aggravating features to which she referred together justified a determinate sentence in excess of 8 years' imprisonment. We therefore quash the minimum term of 4 years and 285 days and substitute for it a minimum term of 3 years and 285 days. To that limited extent the appeal against sentence is allowed.
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