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Neutral Citation No [2012] NICA 33	Ref:	MOR8587
Judgment: approved by the Court for handing down	Delivered:	20/09/2012
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND _______ THE QUEEN -v- J _______ Before: Morgan LCJ, Higgins LJ and McLaughlin J The names of parties referred to in this judgment are pseudonyms _______

MORGAN LCJ

[1] On 25 April 2008 the applicant was convicted on 1 count of indecent assault. That count has not been the subject of an appeal. The jury were unable to reach verdicts on 4 further counts of indecent assault, 2 counts of rape and 1 count of gross indecency in relation to the same complainant. On 1 May 2009 the applicant was convicted of the 4 further counts of indecent assault and 2 counts of rape. The count of gross indecency was withdrawn from the jury for reasons not relevant to this application. The applicant now renews his application for leave to appeal against those convictions. Mr Barlow and Mr Stanbury appeared for the applicant. Mr McMahon QC and Ms Brady appeared for the prosecution. We are grateful to counsel for their helpful oral and written arguments.

Background

[2] The applicant was 43 years old at the time of the alleged offences. He had managed an entertainments agency since 2000. The complainant joined his employment as a vocalist in 2006. She was aged 16 at all times material to this application. The offences are alleged to have occurred between April and December 2006 following gigs when the applicant took the complainant home in the band van. There had been a break in her employment over the summer of 2006. It was the applicant's case that, at all stages, he believed that the complainant was over the age of 17. At trial the applicant denied the allegation that he engaged in any non consensual sexual activity. He accepted that he kissed the complainant on one occasion in April 2006 when the complainant had a tongue bar in place and he said that the complainant had voluntarily performed oral sex on him on another occasion.

[3] The complainant's video taped police interview of 3 January 2007 was the basis of her evidence at trial. She made a complaint to police on 31 December 2006 which resulted in the police attending at her family home later that day for the purposes of making a recording. That morning she had returned from a gig, ran to her bedroom and was heard crying by her parents. Her mother went into the bedroom where the complainant was on the phone to her friend Sarah. The complainant handed the phone to her mother and her mother then learnt that the complainant alleged that she had been touched by the applicant. The complainant's father gave evidence in relation to what was said by his daughter on this occasion and his actions on calling the applicant on the phone. No allegation of being raped was made by the complainant until the police attended the family home later that afternoon.

[4] The applicant had been convicted on Count 1 of indecent assault (kissing) at the original trial. Count 2 of indecent assault (kissing) was alleged to have occurred the following night. Count 3 of indecent assault was the following week where he massaged her private parts in a vehicle, having pulled into a car park. Count 4 occurred immediately after Count 3 when he proceeded to remove her trousers and lick her private parts. Count 5 of indecent assault occurred at Hannahstown Hill. This was after the summer break. The applicant drove up a back road, stopped the vehicle, kissed her and then inserted his fingers into her vagina. The applicant then took her trousers off, turned her round on the seat and lying down he unbuttoned his jeans and inserted his penis into her vagina. This was the Count 6 rape allegation. Count 7 was the second allegation of rape and occurred when she was so drunk she was unable to sing her last song on the night of 30/31 December 2006. She had fallen asleep in the van and fell onto his shoulders. She woke up and could feel him going in and out.

Misdirection on consent and capacity

[5] At an early stage in her charge the learned trial judge gave the jury a direction on the ingredients of each of the offences.

"The defendant has been charged with two different types of offences. One of the types of offences is indecent assault; and that is counts two, three, four and five. I want to tell you what the prosecution must prove on an indecent assault. The prosecution must prove that the defendant touched Jane and that she didn't want that touching; that his touching is capable of being considered by right minded persons as indecent and for the purposes of this case you are the people who are the right-thinking people; and that he intended to touch her in a way that would be considered by right-thinking people as indecent. Now Jane, at the time that she alleges these incidents happened, was under the age of 17 so the issue of consent doesn't arise. She can't in law consent.

Each of counts six and seven is rape. The prosecution must prove in respect of each of these counts that the offender had sexual intercourse with Jane. That means that you must be satisfied that he inserted his penis into her vagina. There doesn't have to be full penetration, there doesn't have to be ejaculation; penetration, however slight, is enough; that Jane did not consent to this intercourse and either that John knew she didn't consent or he was reckless as to whether she consented. Now the prosecution will have proved recklessness if, having regard to all the evidence, you are satisfied beyond reasonable doubt either that John didn't give any thought to the possibility of a risk that Jane was not consenting, or, that having recognised that there was some risk that she was not consenting he nonetheless went on and took the risk. And in considering these questions it's what he thought, it's his subjective attitude, that you have to take account of…"

[6] At the end of the judge's charge prosecution counsel expressed some apprehension that the direction on consent in respect of the indecent assault counts might have misled the jury in relation to the issue of consent in rape. Counsel for the applicant at the trial indicated that it was not a point with which he was taking any particular issue. He expressed the view that the learned trial judge had dealt without any difficulty with the issue of consent. In those circumstances prosecution counsel indicated that he was probably being over-cautious. No further direction on the consent issue was given.

[7] It is now contended on behalf of the applicant that the direction given to the jury on the question of consent was confusing and may have caused the jury to be unsure as to the relevance of consent on the rape counts. We accept that the learned trial judge dealt with the issue of consent in relation to indecent assault at the end of her discussion of the ingredients of that offence and immediately before commencing a discussion of the ingredients of the offence of rape. We do not consider, however, that the charge in relation to consent on the rape counts left open any room for misunderstanding. In directing the jury on those counts the learned trial judge made it absolutely clear that they had to focus on whether the injured party consented and on the state of mind of the applicant as to whether there was consent. The jury could have been in no doubt that the approach to consent was different.

[8] In her charge on the issue of consent the learned trial judge dealt with the issue of capacity.

"Now in describing the second rape, Jane told you that she was so drunk that night that she hadn't been able to sing her last song; that she fell asleep in the van and woke up and honestly didn't know where she was. In considering whether she consented to sexual intercourse on that occasion you will have to decide whether she had so much drink taken that she had lost the capacity to consent. If you decide that she had lost that capacity to consent then she couldn't have consented."

[9] The applicant contends that the direction on capacity was unnecessary and unhelpful. The injured party's evidence was that she had not consented to any of the activity that took place and the prosecution's case was that this ought to have been obvious to the applicant. There was, however, considerable evidence about the extent of alcohol which had been ingested by the injured party prior to the second allegation of rape. Her evidence was that she had consumed so much alcohol that she had fallen asleep in the van on the way home. The rape allegedly occurred when she was asleep and she woke up in the middle of it. In those circumstances capacity clearly was in issue in the trial and no objection was made to this direction at the time. The applicant relies on R v Shehu [2011] EWCA Crim 2427. That was a case in which both prosecution and defence indicated that capacity was not in issue but the learned trial judge nevertheless commented on the consumption of alcohol by the injured party and directed the jury on capacity without giving either the prosecution or defence an opportunity to comment on it. The Court of Appeal concluded that he should not have done so.

[10] In our view that is quite different to this case. The evidence plainly raised the issue of capacity in relation to the second count of rape and unlike Shehu the prosecution relied upon the incapacity in relation to the question of consent. We do not consider that there was any basis for criticism of the learned trial judge's direction on this issue.

Alternative verdicts

[11] The issue of consent was also relevant to the applicant's submission that the learned trial judge should have left an alternative verdict to the jury on the counts of rape. By virtue of section 9 of the Criminal Law Amendment Act 1885 a jury which acquits an accused of rape may find him guilty of indecent assault. It was submitted that the jury should have considered whether the act of penetration occurred to which the injured party could not have consented for the purposes of the offence of indecent assault as an alternative to the rape offence where lack of consent had to be established.

[12] This court reviewed the law in this area in R v Croome [2011] NICA 3 in the following terms:

"[19] The leading authority on the duty of the court to leave alternative verdicts is R v Coutts [2006] 1 WLR 2154. That was a case in which the appellant was charged with murder. His defence was that the death was a tragic accident. The trial judge did not leave the alternative of manslaughter and the appellant was convicted. The House of Lords allowed the appeal. Lord Bingham, with whom the other Law Lords agreed, set out the relevant principles.

"23. The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency."

[20] In a concurring opinion in Coutts Lord Hutton referred with approval to the passage in Lord Clyde's speech in Von Stark v Queen [2000] 1 WLR 1270 which set out the nature of the obligation on the court.

"The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.""

[13] We accept that there can be cases where an alternative verdict should be left to the jury in a case involving an allegation of rape of a person under age even where the defence is that the allegation is false. R v Philips [2007] EWCA Crim 485 is an example of such a case. The defendant had been indicted on two counts of rape. His case was that the allegations were false. In her evidence the injured party said that she had not consented but allowed the defendant to penetrate her because she was afraid to stop him. On the particular facts of that case the court concluded that the issue of consensual intercourse arose on the evidence for the jury to determine. In this case it does not appear to us that the evidence gave rise to any case of consensual intercourse and we do not consider that the learned trial judge had an evidential base for leaving the alternative of indecent assault to the rape counts.

The character direction

[14] At the retrial it was agreed between prosecution and defence that evidence of the applicant's conviction of indecent assault at the earlier trial should be admitted. Arguably this may have been relevant to propensity in relation to Count 2 but it is difficult to see how it could have been relevant to that issue in relation to any of the other counts. In any event the Crown case was that the conviction was relevant as important explanatory evidence but not otherwise. In light of that conviction there was a discussion before the judge as to whether the applicant should benefit from a qualified good character direction. The judge determined that she should give such a direction. It does not appear, however, that there was any discussion with the judge about the issue to which the earlier conviction was relevant.

[15] The learned trial judge's charge on character dealt with the matter in the following way.

"Now I want to talk to you about what is called good character. The criminal law make certain provisions in respect of what's called the good character of the defendant. Now a person is described as of good character in law if he has no previous convictions, if he has a completely clear criminal record, or if he has criminal convictions that are of no relevance or significance. Now you've heard that the defendant has only one previous criminal conviction. It's a conviction that was determined by the previous jury, who found that, although he said that the first kiss, the tongue bar kiss, happened and was consensual that jury found that it was an indecent assault on Jane.

Now that previous conviction is both relevant and significant and, therefore, the defendant's good character is blemished in that respect. So I can't, therefore, without some reservation give you the direction as to the defendant's good character and, of course, good character, whether with or without reservation, cannot be a defence to a criminal charge, but you should take account of the limited good character of the defendant in the following two ways. In the first place, the defendant has given evidence, and his good character, albeit blemished, supports his credibility. This means that it's a factor you take into account when deciding whether to believe his evidence. Now in the second place, the fact that the defendant is a person of good character, again, albeit blemished, may mean that he is less likely than otherwise might be the case to commit the crimes of which he stands charged before you. Like I've said these are matters to which you should have regard in the defendant's favour, but it's for you to decide what weight you should give to them in this case."

[16] There was no other direction to the jury as to how they should use the conviction in the earlier case. The applicant submitted that the jury required careful direction on the conviction as they may have treated it as supporting evidence or evidence of a propensity by the applicant to commit the offences with which he was charged.

[17] In cases where the court is asked to determine the admissibility of bad character evidence the judge will have the benefit of the submissions of the parties on the gateways through which the evidence should be admitted and consequently the purpose for which the evidence should be admitted. This court recently asserted in R v Cyril Hamilton [2011] NICA 56 the importance of ensuring that evidence admitted to correct a false impression should be used by the jury solely for that purpose. That is merely an example of the fact that juries require guidance on the issues to which evidence of bad character is relevant.

[18] Where, however, evidence of bad character is admitted by agreement there is a danger that in not addressing the admissibility issue the court and the parties may fail to identify the purpose for which the evidence is admitted and fail to direct the jury accordingly. The concern in this case is that there was no express direction from the judge indicating to the jury that the conviction could not be used as evidence of a propensity to commit any of the offences which they had to consider. We accept that no such express direction was given and we also see the force of the submission that having regard to the nature of the earlier conviction this was a case in which such a direction would have been appropriate. In considering the safety of the conviction on this issue we bear in mind, however, that the learned trial judge did give a modified good character direction which included the second limb suggesting that it was less likely than otherwise might be the case that he committed the crimes of which he was charged. In our view that direction significantly reduced any risk caused by the failure to give an express direction on propensity.

Evidence of complaint and inconsistency

[19] During the trial evidence of complaint was admitted apparently without objection. Another female band member said that the injured party told her on 30th December 2006 that she was scared to go home in the van with the applicant because he kept trying it on. A friend of the injured party stated that in the early hours of 31st December the injured party told her that she didn't want the applicant to touch her again. The injured party's mother gave evidence that the injured party made a number of complaints to her shortly after that. None of these complaints expressly included an allegation of rape. That complaint was not made until later that day to a police officer. There was, therefore, material in these complaints to suggest an inconsistency in the injured party's account and one can well understand that strategically it may have been sensible for those representing the applicant to expose that inconsistency in order to undermine the credibility of her account. In the absence of any objection from the applicant's representatives it seems to us that it would have been improper for the learned trial judge to have prevented this evidence being given since it allowed the defence to address the jury on the inconsistencies.

[20] The learned trial judge directed the jury that they should deal with the evidence in the following way.

"Now the evidence of what Jane told Mark, Sarah, her mother and the constable is not independent evidence of what happened, but if you accept the evidence of those witnesses about what Jane told them, her complaints to them are evidence that you can take into account, if you think fit, when considering Jane's reliability as a witness and when considering your verdict."

No criticism can be made of that direction. It properly directed the jury as to how they should use this evidence and in our view also properly recognised in the case of this type that such complaint evidence should not be treated as independent evidence of the truth of what occurred.

[21] In the course of summing up the learned trial judge referred to a number of inconsistencies in the accounts given by witnesses. Many of these inconsistencies and more were explored during the trial before the jury. The learned trial judge made plain to the jury that this was a case which very much depended on whether they were satisfied beyond reasonable doubt on the basis of the account given by the injured party. In the preceding part of her direction she had set out for the jury the substance of the inconsistencies upon which the defence relied. There was no requisition in relation to any aspect of the learned trial judge's charge by the defence. Counsel now appearing for the applicant brought to the courts attention the JSB specimen directions on inconsistent statements in England and Wales. If judges find these helpful they may wish to adapt them but in our view the approach taken by the learned trial judge in this case was entirely appropriate.

Evidence of demeanour

[22] Evidence was introduced that at the time of her disclosures on 31st December the injured party was extremely distressed. There was also considerable evidence that she had consumed a very large quantity of alcohol. The applicant submits that the jury should have been instructed to ignore the evidence of distress. We do not accept that submission. Distress at the time of making a complaint can be taken into account by a jury in determining the weight that should be given to an injured party's evidence. The court must be careful, however, to alert the jury to any circumstance which may suggest that the distress was feigned (see R v Romeo [2003] EWCW Crim 2844). No such circumstance apart from the drunken condition of the injured party about which the jury were directed was in evidence in this case. The jury were, therefore, entitled to take the distress into account in assessing the complaint evidence.

[23] The applicant also maintained that evidence of long-term changes in demeanour in the course of the period during which the offending was alleged to have occurred was introduced by the prosecution. We accept that there was evidence introduced indicating that there were a number of issues going on in the injured party's life at the time and that evidence was given that whereas the injured party normally came into her parents' bedroom after a gig when she initially started working she tended not to do so later on.

[24] We accept that evidence of long-term changes to demeanour in the course of offending should only be admitted where there is some concrete basis for regarding the demeanour and state of mind described by the witness as confirming or disapproving that sexual abuse had occurred (see R v Venn [2003] EWCA Crim 236). We do not accept, however, that the evidence introduced in this case constitutes evidence of a change of demeanour. There was evidence before the jury that the injured party had started to drink more in the course of performing but there was no suggestion that such alcohol ingestion was caused by the offending.

Other matters

[25] The applicant submitted in his written argument that the learned trial judge failed fairly to put the defence case to the jury or properly to set out important issues. We accept that it is important that the jury is directed to the matters which bear on the credibility and reliability of witnesses in a case such as this but that does not mean that the judge has to rehearse every detail of such issues. The judge's charge takes place in the context of closing speeches by both prosecution and defence and the extent to which the judge properly enters into the detail of the evidence is inevitably influenced by the extent to which that debate has already been fairly put before the jury in those closing speeches. We do not consider that the failure to direct the jury in relation to an issue about the applicant's belief that the injured party was 17 was material and we consider that the issue of whether the injured party was naive or alternatively was malicious was plainly before the jury. These issues were properly abandoned by the applicant at the oral hearing.

Conclusion

[26] The issue for us is the safety of the conviction. We accept that no express direction on propensity was given in relation to the conviction on the first trial but for the reasons given we do not consider that the absence of the direction renders the verdict unsafe. We do not consider that there is merit in any of the other grounds and accordingly dismiss the application for leave to appeal.