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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gabbai v R. [2019] EWCA Crim 2287 (20 December 2019) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2019/2287.html Cite as: [2020] Crim LR 755, [2019] EWCA Crim 2287, [2020] 4 WLR 65 |
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ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON THAMES
His Honour Judge Lamb QC
T20167423
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE ANDREWS DBE
and
HIS HONOUR JUDGE AUBREY QC
____________________
Edward Gabbai |
Appellant |
|
- and - |
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The Queen |
Respondent |
____________________
Simon Russell Flint QC (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 8 November 2019
____________________
Crown Copyright ©
Lord Justice Irwin:
Introduction
i) The trial judge failed to mention in the route to verdict document that any penetration of NR's anus had to be intentional before guilt could be established;
ii) The judge erred in refusing to allow evidence that NR had made six previous, and at times inconsistent, complaints of rape or sexual assault against six separate and unconnected individuals;
iii) The judge erred in refusing to allow the jury to hear extrinsic evidence that VG had a particular interest in rough, violent sex;
iv) The judge erred in directing that the complaints made by VG and NR could be treated as cross-admissible.
i) The prosecution failed to serve a bad character notice, which was required if cross-admissibility was to be relied upon, and the judge failed to give a ruling on that in advance of closing speeches;
ii) The verdict on count 4 was illogical, inconsistent with verdicts on counts 3 and 5, and a verdict that no reasonable jury could have reached.
iii) Alternatively, that the judge's direction as to consent in relation to count 4 was inadequate and misleading.
"(1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."
The Case Concerning NR
"31. On 20th October 2016, [NR] was admitted to the Maytree Centre for the maximum five-day stay.
32. The Maytree Centre is a respite centre for those in suicidal crisis.
33. Whilst at Maytree, [NR] was noted as saying, amongst other things, the following:
a) she went out of her way to hurt herself and put herself in dangerous situations;
b) this would include walking alone at night when it was dark;
c) that she "counts tubes and speeds and looks at traffic";
d) she said that "in a way if (she) gets murdered it won't look like suicide";
e) she is unable to look in the mirror or at her body.
"34. On 1st November 2016, during a psychiatric assessment, [NR] told Dr Sanchez that she was "always putting herself in danger, found it hard to say no, but there were lots of other times she didn't when she wanted to say no".
35. On 14 November 2016 [NR] was referred to the Haringey Complex Care Team following a psychiatric assessment. It was recommended that her dose of fluoxetine (for depression) should be doubled to 40mg per day.
36. On 28th November 2016 it was noted by her GP that her mood had dropped sharply. She was told to go to A&E immediately and was offered an ambulance or taxi to take her, which she declined. Medical records show that the does was duly doubled on 1st December 2016."
"(NR and Gabbai are already in the bathroom)
Gabbai: Put your face up, keep your eyes closed
NR: (demonstrates)
Gabbai: Tell me you'll do anything you want
NR: I'll do anything you want
Gabbai: Do you know what happens if you miss obey?
NR (shakes head)
Gabbai: You're shaking your head (slaps)
NR: No, don't, don't, don't
Gabbai: Close your eyes. Hands behind you. Now.
NR: (demonstrates)
Gabbai: Arse in the air
NR: (demonstrates)
Gabbai: Stay there for me
(Gabbai searches for a condom and returns, putting it on)
Gabbai: Say, "Please"
NR: Please
Gabbai: Louder, I can't hear you
NR: Please
Gabbai: Good
(Gabbai inserts penis)
NR: Ouch, ouch, ouch. Please, don't. No, please, no. Ouch (crying).
Please, don't, please, don't
Gabbai: Do you want me to stop?
NR: (shakes head)
Gabbai: Say it clearly, say it clearly
NR: No
Gabbai: No, you don't want me to stop. You want me to keep fucking you.
Say it clearly for me
NR: Mm-hmm (nods head)
Gabbai: There's a good girl. Suck (indicates)
(NR sucks Gabbai's fingers)
Gabbai: Good girl"
The Direction on Intentional Penetration (Ground 1)
"Question 1: Are you sure that D penetrated the anus of NR with his penis?
If your answer is "Yes", go to question 2.
If your answer is "No", your verdict will be "Not Guilty"
Question 2: Are you sure that when D penetrated NR's anus, NR did not consent to it?
If your answer is "Yes", go to question 3.
If your answer is "No", your verdict will be "Not Guilty"
Question 3: Are you sure that D did not genuinely believe that NR consented to the penetration of her anus?
If your answer is "Yes", your verdict will be "Guilty".
If your answer is "No", go to question 4.
Question 4: Are you sure that D's belief in NR's consent to the penetration of her anus was unreasonable?
If your answer is "Yes", your verdict will be "Guilty"
If your answer is "No", your verdict will be "Not Guilty""
"[I]f the jury are sure about the absence of consent and they are sure about the absence of reasonable belief, it is no defence for A to say, 'I didn't intend to rape'. Go back to the statutory definition right at the beginning. A person commits an offence if he intentionally penetrates. That is the only point at which intentional comes into the statutory definition. The penetration, I am going back to that passage on intention, see the statutory definition."
Logically Inconsistent Verdicts (Additional Ground 2)
"…absent a specific direction, it was generally permissible for a jury to be sure of the credibility or reliability of a complainant or witness in relation to one count in the indictment and not to be sure of the credibility or reliability of the complainant on another count."
The account of a complainant is divisible. Some parts may be believed and others disbelieved. In Fanning, at [28], this Court recited with approval the approach of Sir Igor Judge PQBD, as he then was, in R v C [2007] EWCA Crim 2581. At [40], in holding that the verdicts were not logically inconsistent, the Court observed:
"Here the jury was sure about the reliability of the complainant's evidence, where it was provided with a measure of independent support, but unprepared to be sure where it was not. This was an entirely rational approach, properly seeking to give the benefit of the doubt to the defendant."
NR's History (Initial Ground 2)
i) Notes from the GP from April 2015 relating to an episode said to have taken place in 2011, when the complainant was 18 years of age, recording an allegation of rape: "Taken from a bar. I only said "no" half way through".
ii) In relation to the same episode, notes from her assessment for the Maytree Clinic on 19 October 2016 read: "She is 18 years old. She goes out with a group of friends and drinks quite a bit of alcohol. She loses one of her group and goes out to look for her. The next thing she knows, she's in a taxi with a stranger and is raped. She couldn't remember all the details and wonders whether she consented to it as she is a bad person".
iii) A further account, given in her second ABE interview for this case, but bearing on the same earlier episode, includes the following: "Actually hadn't had v. much to drink. Went over to bar then memory becomes unclear. I remember being in a taxi with a man and then he took me to his house and had sex with me. I do remember telling him to stop. I don't remember what happened after that. I think he did kind of carry on for a little while after that but I'm not …. I don't remember very clearly. I think … don't think it was [non-consensual]."
iv) In relation to an episode said to have taken place in 2014 when the complainant was 21 years of age, the complainant is noted in the course of discussion in October 2016 as saying this was an episode of "rape … by her boyfriend two weeks ago … didn't think she was at risk or had the right to say no. This has happened to me before. Previous assault several years ago."
v) In relation to an episode said to have taken place in 2015 when the complainant was 22 years of age, again the Maytree Notes from 2016 read: "In Spain. Maybe wasn't rape."
"Raped three times. 'I put myself in dangerous situations'
1. 18 years taken from a bar. I only said no half-way through.
2. A guy forced himself on me.
3. In Spain. Maybe wasn't rape."
"Has suffered three rapes. Putting herself in dangerous situations (i.e. voluntarily) like walking through a park when its dark and late … I felt she could quite easily do something impulsively, she agreed she counts tubes and speeds and looks at traffic.
On the day she gets her results (A levels) she goes out to celebrate. She is 18 years old. She goes out with a group of friends and drinks quite a bit of alcohol. She loses one of her group and goes out to look for her. The next thing she knows she is in a taxi with a stranger and is raped. She couldn't remember all the details and wondered whether she consented to it as she is a bad person … Aged 19 years she rents a room with a friend and works for about 1 year. This is when she really starts to act out sexually with no regard for her safety. She often goes off with strangers and takes whatever drug they have, lets people do what they want to her, switches off … She found it hard to say no to people… Whilst in Spain she is raped. Doesn't go into detail but is very clear that on both occasions she said no to the perpetrators… Back to England and has returned to study at [university]. Not reported rapes. Has since started to put herself in dangerous positions. Having random sex with just anyone. She goes out and if someone chats to her she will have sex with strangers. I asked her what she was thinking when she did this and she said she hates herself and feels she deserves no better. In a way, when she's out walking late at night, if she gets murdered it won't look like suicide… She said she wasn't exactly planning suicide but putting himself in dangerous situations would save her having to do it. I got the sense she could quite easily throw herself under a tube or walk out into traffic … She said she went out of her way to hurt herself and put herself in dangerous situations. When she said "no" she felt like she didn't have the right to say no and even when she did she wasn't listened to…"
NR's History: The Application at Trial
"(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which –
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole,
(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if –
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
…
(4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court."
"(i) No complaint was ever investigated;
(ii) There is insufficient material capable of founding an inference that any one or more of the complaints is untrue;
(iii) Extensive satellite litigation would be involved; and
(iv) Such satellite litigation would subject NR to unnecessary, lengthy, speculative and intrusive cross examination."
"(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 give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and 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 –
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(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, or
(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, 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; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(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 (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).
(7) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence –
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge."
"i) That she has variously described herself as 'bisexual' and 'probably' a lesbian but has admitted to having sexual relationships with men;
ii) That she had complained of several previous instances of sexual assault and/or rape where she was unclear as to whether she gave consent, including a specific incident when she went back to a man's house in a taxi after a night out and had sex;
iii) That she had complained of another incident of rape when she started university involving another man but had also said that 'I sort of let him have sex with me' and that, although she told him that she did not want to have sex, it was 'kind of consensual';
iv) Whether she had particular difficulty in recalling the detail of sexual encounters after she has drunk (even modest) amounts of alcohol;
v) That she had discussed with therapists that she 'acts out' sexually, in the context of her experiencing self-hatred;
vi) Whether she had developed a habit of allowing herself to be controlled in sexual situations without complaint;
vii) That she had previously deliberately placed herself in what she believed to be risky or even dangerous sexual situations;
viii) That these situations have included walking in isolated areas alone at night, leading to sexual attack in Spain;
ix) That she had been so concerned about her own sexual decision making that she had discussed the issue with several mental health professionals."
Analysis
The Case Concerning VG
Admissibility of Text Messages (Initial Ground 3)
Cross-Admissibility (Initial Ground 4, Additional Ground 1)
"S.101
(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if –
…
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
…
(3) The court must not admit evidence under subsection (1)(d) … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.
"(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include –
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.
"…first determine whether it is satisfied on the evidence in relation to one of the counts of the defendant's guilt before it can move on to using the evidence in relation to that count in dealing with any other count in the indictment."
"Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered: 1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged? 2. Does that propensity make it more likely that the defendant committed the offence? 3. Is it unjust to rely on the conviction(s) of the same description or category; and in any event, will the proceedings be unfair if they are admitted?"
"Taking that notion of propensity, the question that arose here was: were the features of one or more of these offences likely to indicate that the appellant had a propensity – a tendency, an inclination, a disposition – to breach sexual boundaries in the context in which these matters arose?"
"65D. [T]here are two ways in which the evidence of one count might support the prosecution's case on the other. You should consider these ways in the following order.
First, consider count 4 where the prosecution rely not only on the evidence from NR, but on VG's phone video. If, having considered the evidence on count 4, you are sure that the defendant is guilty of count 4, you should go on to consider whether that shows that he has a tendency to commit offence of the kind charged in count 2. As Mr Russell-Flint [counsel for the prosecution] put it, losing control in the moment and/or exploiting his physical, dominant role in the sexual activity, playing little or no regard to the wishes of his sexual partner.
If you are not sure that the defendant has such a tendency, then your conclusion that he committed the offence in count 4 does not support the prosecution case on count 2, but if you are sure that the defendant does have such a tendency, then you may take this into account when you are deciding whether the defendant is guilty of count 2.
Bear in mind, however, that even if a person has been a tendency to commit a particular kind, it does not follow that he is bound to do so, so if you are sure that D has a tendency to commit offence of the kind charged in count 2 or 4, this is only part of the evidence against him on that count and you must not convict him wholly or mainly on the strength of it.
The second way in which the evidence on one count might support the prosecution's case on the other is this. The prosecution also rely on similarities between the allegations made by VG and NR. What have they both told you, say the prosecution? That D was posing as a caring and considerate sexual partner. He adopted the physically dominant role, he abused that position to sate his own desire.
66G. If you decide that this has or may have happened, the similarities between that complainant's evidence and the evidence of the other complainant, would not take the prosecution's case any further and you would have to take any influence of that kind into account when deciding how far you accepted the complainant's evidence. However, if you are sure that there had been no such concoction or inference, you should consider how likely it is that two people independently of each other, would make allegations that were similar but untrue. If you decide that this is unlikely, then you could, if you think it right, use VG's evidence as support for the evidence of NR or the other way around."
"…unless the procedure for admitting evidence of bad character is to be treated as a complete dead letter, that meant that the evidence was inadmissible and the appellant was entitled to have the case decided on the basis that evidence on each count was inadmissible in relation to other counts. That in turn made it necessary for the judge so to direct the jury."
The Safety of the Convictions
Conclusion