Jersey Unreported Judgments

[2006]JCA163

COURT OF APPEAL

16^th November 2006

Before     :

Dame Heather Steel, President; M. S. Jones, Esq., Q.C.; and G. R. Rowland, Esq., Bailiff of Guernsey.

Clark Taljaard

-v-

The Attorney General

Application for leave to appeal by Clark Taljaard against a conviction by the Assize Court on the following charge:

1 count of:

Rape

S. M. Baker, Esq., Crown Advocate

Advocate C. L. I. Davies for the accused

Application for leave to appeal a conviction for rape on 9^th day of June 2006 by a jury at an Assize trial in the Royal Court of Jersey.  Application for leave to appeal the sentence of five years in custody with a recommendation for deportation passed by the Superior Number of the Royal Court on 28^th August 2006.  The Applicant filed notice of his intention to apply for leave to appeal his conviction on 12^th June 2006 and sentence on 30^th August 2006.

JUDGMENT

This is the judgment of the Court.

THE PRESIDENT:

1.        The circumstances of the offence concern an incident which took place in the early hours of the morning of Monday 17^th October 2005.  During the previous evening the Applicant and the Complainant, who was 19 years of age, had spent the night out drinking separately in St. Helier.  While they may have spoken briefly in a nightclub, they were essentially strangers.  The rape took place outside the staff accommodation of the Metropole Hotel.  The Complainant works as an employee at the hotel.  She had returned alone from a night out with friends and was about to go into the staff accommodation.

2.        The Crown's case was that the Applicant engaged her in conversation on the doorstep.  They talked for a while and ended up sitting on a step near the door.  The Applicant forcibly penetrated the Complainant without her consent and in spite of her protests. 

3.        The Applicant, who is aged 31, lived in the Bantry House Hotel in St. Brelade, started the evening with a few drinks in his hotel room.  Around 10 pm he went to the Goose on the Green public house where after a few drinks alone he was joined by a friend. They drank together until closing time when they decided to share a cab into St. Helier to continue drinking.  They went to the Havana Club where they drank, socialised and separated. 

4.        The Applicant left the Havana Club at about 1.40 am and went to La Cala.  The Complainant was in La Cala with a number of her friends.  They had spent the evening drinking in bars in St. Helier.  CCTV coverage in La Cala indicated some contact between the Complainant's group and the Applicant who may have spoken briefly to the Complainant.  Some time after 2.00 am the Complainant and the Applicant left La Cala separately. 

5.        The Complainant walked up Bath Street towards Snow Hill where she met a male friend Seb Richards.  She sat with him on seats outside the S Bar while her friends returned to the accommodation they shared in the Metropole Hotel, Roseville Street.  The Applicant was also seen in the vicinity of Snow Hill at this time.  He is shown on CCTV coverage to be clearly under the influence of alcohol.  At some stage between 2.30 am and 3.00 am he spoke to two females Julie Laverty and Cheryl Hanlin who were sitting on seats outside the S Bar.  The Applicant said that he was called Clark and he was from South Africa.  He told them that he was fed up because he had not met anyone in Jersey and he wanted a serious relationship.  The conversation became awkward when the Applicant implied that he was attracted to Miss Laverty and the Applicant walked off in the direction of La Colomberie. 

6.        Seb Richards and the Complainant were by this time near the Spar Shop at the top of Roseville Street and at 3.15 am the Applicant was in the same area.  CCTV footage shows that he gave a light for a cigarette to Seb Richards.  Shortly afterwards Seb Richards was seen to walk back alone towards the Olive Branch Restaurant having left the Complainant to return to her accommodation. 

7.        The Applicant is then shown to make his way down Roseville Street.  When the Complainant reached her front door she paused to look for her keys which together with her handbag had been taken by her friends when they left her earlier.  She remembered a male say "Good Night?" and recalled speaking to the Applicant but not what they talked about.  She recalled sitting with him on the steps and lying on her back on the concrete.  She could not recall how she came to be in that position and did not recall being pushed.  She told the jury that the Applicant undid her trousers and took them down to her knees, he then undid his trousers before penetrating her with his penis halfway into her vagina.  The Complainant said she tried to stop him and when she told him to stop the Applicant put his hand over her mouth.  She moved it with her hand, and turned her body to one side.  The Applicant withdrew, got up and walked away.

8.        The Complainant weighed just over 8 stone and is five feet two inches tall.  The Applicant was 16 stone and six feet four inches tall.  Three witnesses heard the words "get off me" shouted, and crying was heard all the way to the door of the building.  The Complainant grabbed her shoes, trousers and underwear and ran into her room where her distress was seen by her room mates who questioned her, and the complaint of rape was made. 

9.        The Police attended, the Complainant was medically examined and found to have sustained a minor injury to her genitals consistent with penile or digital penetration.  The Applicant was arrested later that day, his clothing seized and examined, and analysis of staining near the crotch area of his underpants revealed the DNA of the Complainant. 

10.      In interview he told the police that he had been intoxicated and he denied the allegation.  In evidence at trial he said he recalled that he had fingered a girl, but had decided not to tell the police about the recollection.  Evidence was given at the trial of his movements later that morning and the Applicant said that his recollection stopped at the time when he spoke to the two females outside the S Bar.  He blamed his memory loss on the alcohol he had consumed.

11.      At 8.00 am on 17^th October he had called in sick to his employer and evidence showed that he dishonestly stated to his former partner and her friends that his father had had a massive heart attack and that his mother had booked him a flight to South Africa.  In fact he had made plans to leave Jersey and fly to the Isle of Man.

12.      We are grateful to Advocate Davies, who presented the applications to the Court, for her careful analysis of the issues and to Advocate Baker for his responses.

13.      At the trial the Applicant faced two counts which alleged rape or in the alternative indecent assault against the Complainant described as Witness 1. 

14.      The trial was conducted over a period of four days.  Evidence for the Crown was called from Witness 1, Louise Paul, Nadine Nelson, Dr Martin Barrett, Dr Michael Holmes, Nicholas Hubbard and Rachel Knottley.  Agreed evidence was read to the jury and the jury had an agreed Chronology, Formal Admissions, also photographic and other exhibits.

15.      At the close of the prosecution case no submission was made that there was no case for the Applicant to answer.

16.      The Applicant gave evidence and called Dr Dale Harrison, Dr Nigel Hodge and Valerie Morrison.

17.      The Applicant was convicted of the offence of rape by the jury by a majority of 10 - 2 and Miss Davies submits that this lack of unanimity requires the Court of Appeal to scrutinise the grounds of the application with special care.  The fact that the conviction was by a majority in no way bears upon the safety of the conviction; nevertheless we take into account her submission.

18.      It is clear that the Applicant feels aggrieved by his conviction.  We accept that he is deeply concerned.  Each ground upon which this application is based has been considered both individually and collectively.  The Court has also carefully considered and taken into account all the matters submitted both orally and in writing in relation to issues not specifically referred to in the judgment.

19.      Article 26(i) of the Court of Appeal (Jersey) Law 1961 governs the determination of appeals in ordinary cases and reads as follows:

"(1) Subject to the following provisions of this Part, 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 ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before which the Appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice and in any other case shall dismiss the appeal."

20.      This application for leave to appeal conviction is now based on five grounds.

(i)  That the conviction cannot be sustained having regard to the weight of the evidence.

21.      Advocate Davies realistically accepted that this ground has been shown to be difficult to establish.  The case of R v O'Brien [2006] UK PC was cited.  It was submitted that the Court of Appeal should look at the evidence as a whole.  Advocate Davies submitted that even though the jury had seen and heard the witnesses there is here sufficient doubt, indicated by the majority verdict, to render the conviction unfair.  She invited the Court to consider that juries may be less accustomed than Jurats to listening to evidence and submissions.

22.      She accepts that the burden is upon the Applicant to show that something had gone very wrong so that a miscarriage of justice had occurred.  She contends that the evidence of the Complainant was so unreliable and inaccurate that it was incapable of belief and that the rape described would have been physically impossible.

23.      It is not in issue that there were a number of inconsistencies in the evidence given by the Complainant.  For example, still photographs from CCTV coverage during the evening of 16^th October demonstrated that accounts given to the police by the Complainant and her companions as to the times and places of events that evening were shown to be inaccurate.  There were other inconsistencies and failures of recollection in the evidence of the Complainant which were said to cast doubt on her accuracy and reliability.  The inconsistencies relating to events during the evening, whilst relevant, give little significant assistance as to what took place between the Applicant and the Complainant when they were alone together in Roseville Street.

24.      Advocate Davies accepts that every issue arising from the Complainant's account was ventilated during the course of her evidence, and in the closing submissions of Advocate Fitz every point was properly made and stressed to the jury.

25.      Nevertheless it is the submission of the Applicant that the verdict was such as to represent an aberration which would justify the Court of Appeal in overturning the conviction.

26.      The jury, having heard all the evidence and seen it tested, been addressed by the Advocates, directed by the Learned Commissioner Sir Richard Tucker, and having taken into account all the inconsistencies, rejected the Applicant's account and were satisfied of his guilt.

27.      It is not now arguable that this conviction cannot be sustained having regard to the weight of the evidence and we reject the first ground of the application.

(ii)  That substantial extracts from the Complainant's statements were read out to her by the Learned Crown Advocate in the course of re-examination and were thus inadmissible.

28.      It was contended on behalf of the Applicant that evidence adduced in this way should not have been admitted and resulted in prejudice to the Applicant.

29.      It is necessary to consider the context in which the evidence came to be so adduced.  During cross-examination the Complainant was extensively questioned as to the content of two statements she made to the police on 17^th October and 2^nd November 2005.  The statements were not before the witness and the questions ranged between the two statements demonstrating possible inconsistencies.  Without application for leave having been made to the Learned Commissioner, as it is accepted by both Advocates that it should have been, Advocate Baker invited the Complainant in re-examination to look at her statements and confirm the contents.  Advocate Fitz did not object to this course and in the absence of the jury agreed that a relevant paragraph in the second statement, the subject of cross-examination, should be put to the Complainant in full.  We were informed that Advocate Fitz now regrets that agreement because it may have prejudiced the Applicant.   The Learned Commissioner would have acceded to the course taken had an application been made to adduce the evidence in this way.  We are satisfied that, despite the fact that no application was made, the course taken was appropriate in the context of the cross-examination, not unfair or prejudicial to the Applicant, but necessary to put the cross-examination on the statements into context.

30.      We were referred to R v Beattie [1989] 89 Cr. App. R.302 in relation to this ground.

(iii)  The Learned Commissioner erred in his summing up in relation to

(a) the corroboration direction

(b) distress

(c) recent complaint, and

(d) failure to direct about the Complainant's required state of mind

31.      Before he summed the case up to the jury, the Learned Commissioner discussed with both the Advocates, the legal directions necessary in the case and the form which such directions should take.  The Learned Commissioner identified three parts of the evidence which were capable, if accepted by the jury, of being corroborative of the Complainant's evidence.  These were:

(i)        evidence contained in statements accepted and read to the jury from three witnesses which related to hearing a woman shouting "get off me" three or four times.  One witness described hearing the words "It hurts get off me" and a female voice crying all the way to the door of Flat 2;

(ii)       evidence of the Complainant's distress from her two flat mates; and

(iii)      lies told to the police and to others by the Applicant.

32.      The Learned Commissioner further raised the question of recent complaint as being evidence which may assist the jury as to whether the Complainant was consistent and whether or not she was truthful.  The complaint of rape was made to a flat mate Nadine Nelson in answer to the question "did he have sex with you?" and to the police officer "did he rape you?"  The Learned Commissioner discussed with the Advocates the direction he proposed to give in relation to this part of the evidence.  The direction was agreed.

33.      This evidence of recent complaint had been before the jury with the consent of the defence to show that the Complainant was mistaken and had words put into her mouth as a result of leading questions.

34.      The Learned Commissioner summed up the case in accordance with the directions agreed and discussed.

35.      Bearing in mind that the Applicant faced two alternative charges, after the Learned Commissioner had described the ingredients of both offences to the jury and at the start of his corroboration direction, he used the words "In a case such as this where there is an allegation of a sexual offence I give you a particular warning."

36.      The Applicant now submits that the direction on the evidence which if accepted was capable of corroborating the Complainant's account should have made it more clear to the jury that the corroboration warning applied equally to rape or indecent assault, not exclusively to rape.  We can find no fault with the way in which this part of the direction was given.

37.      Advocate Davies submits that the direction relating to distress as being capable of corroborating the Complainant's account should have dealt more fully concerning the issue of whether the distress was genuine and not feigned.  We have been invited to consider the well known authorities of R v Redpath [1962] 46 Cr. App R 319 and R v Chauhan [1981] 73 Cr. App. R 232.  We are satisfied that the jury were adequately and properly directed in relation to how they should approach this part of the evidence.

38.      It is submitted that the direction regarding "recent complaint" and the circumstances in which the complaints were elicited should have been dealt with separately from the issue of distress.  We are satisfied that the matter was appropriately included in the direction regarding the evidence of distress.

39.      It is further submitted on behalf of the Applicant that the Learned Commissioner should have directed the jury more specifically in relation to the Complainant's state of mind at the time sexual intercourse or activity took place, provided the jury were satisfied that either sexual intercourse or fingering took place. We were referred to the case of R v Olugbeja [1982] QB 320.  We are satisfied that the careful direction given by the Learned Commissioner regarding consent is appropriate to the circumstances of the case and that no further direction was necessary.  The direction re drunkenness was agreed and is not the subject of complaint.

(iv)  The Conduct of the Learned Commissioner

40.      It is submitted that when he asked of the Complainant "was that very comfortable for you, did you like that?" during her evidence and of the Applicant "would you say that was a romantic place for willing sexual intercourse or fingering?"  "Are you saying this woman chose voluntarily to lie somewhere along that alley way while you fingered her?" those questions may have led to prejudice.

41.      Advocate Davies accepts that judicial comments have to be extreme to succeed in establishing a miscarriage.  We are not satisfied that these questions would have had any impact on the fairness of the trial.

(v)  The Conduct and Comments of the Crown Advocate

42.      It is submitted that the Crown Advocate in various ways exceeded the bounds of a fair prosecution.  We are unpersuaded that any of the matters complained of exceeded the boundaries available to a fair and competent prosecutor.

43.      In the trial, in order to convict the Applicant of rape, the jury had to be satisfied in relation to two matters:

(i)        that sexual intercourse took place; and

(ii)       that the Complainant did not consent and the Applicant was reckless as to whether she consented or not.

44.      There was ample evidence upon which a properly directed jury could be so satisfied.  This jury was properly directed in relation to the law and their approach to the facts. 

45.      We find no merit or substance in any of the grounds of this application for leave to appeal conviction. 

46.      It is not arguable that the conviction cannot be sustained having regard to the weight of the evidence, nor that the trial process was in any way unfair to the Applicant nor that there was a miscarriage of justice.

47.      This application is refused.

APPLICATION FOR LEAVE TO APPEAL THE SENTENCE OF FIVE YEARS' IMPRISONMENT

48.      There is no application regarding the recommendation for deportation.

49.      It is accepted that the appropriate guideline authorities in England in relation to sentencing in cases of rape are R v Billam [1986] 1 WLR 349 and R v Millberry [2003] 1 WLR 546 and are treated in Jersey as guideline cases.  We have also been referred to AG v de la Haye [1995] JLR N27c.  We take these into account and appreciate that these authorities do no more than set guidelines.

50.      It was submitted on behalf of the Applicant that a five year sentence following a contested trial for rape whilst being within the accepted guidelines did not take into account the personal mitigation available to the Applicant nor the unusual circumstances of this offence.

51.      In relation to the offence the Court is asked to consider:

(i)        that the Applicant did not follow the Complainant;

(ii)       that the Complainant engaged freely in conversation with the Applicant for up to fifteen minutes;

(iii)      that both the Complainant and the applicant had been drinking heavily;

(iv)      the incident complained of lasted no more than twenty to thirty seconds.

(v)       there was no physical damage to the Complainant save for petechial     haemorrhage and no damage to her clothing.

52.      In relation to the Applicant the Court is invited to consider:

(i)        the Applicant's lack of relevant previous convictions;

(ii)       his good work record;

(iii)      that he had been prepared to plead guilty to indecent assault in an attempt to avoid the complainant having to go through a trial.

53.      It is submitted that the Applicant feels aggrieved at the harshness of his sentence.

54.      This Court should only interfere with the sentence passed if it is either wrong in principle or manifestly excessive.

55.      It is accepted that custody is not wrong in principle.  The length of the sentence in this case, taking into account all the circumstances of the offence and the offender, cannot arguably be considered manifestly excessive.  The offence was serious and the sentence entirely appropriate.

56.      The Application for leave to appeal sentence is refused.

Authorities

Court of Appeal (Jersey) Law 1961.

R v O'Brien [2006] UK PC.

R v Beattie [1989] 89 Cr. App. R.302.

R v Redpath [1962] 46 Cr. App R 319.

R v Chauhan [1981] 73 Cr. App. R 232.

R v Olugbeja [1982] QB 320.

R v Billam [1986] 1 WLR 349.

R v Millberry [2003] 1 WLR 546.

AG v de la Haye [1995] JLR N27c.