Case No: 1999/02444/Y4

IN THE COURT OF APPEAL 
(CRIMINAL DIVISION)
 
	Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 17 February 2000

	B e f o r e :

LORD JUSTICE PILL
MR JUSTICE BRIAN SMEDLEY
and
MR JUSTICE CRANE

- - - - - - - - - - - - - - - - - - - - -

	Regina		
	—  v  —		
	M J W		

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr Bearnard Thorogood appeared for the appellant

Mr  Simon Drew appeared for the Crown
Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Pill:
	
	On 26 March 1999 in the Crown Court at Stoke-on-Trent before His Honour Judge Styler and a jury the appellant M J W was convicted of rape. He was sentenced to a term of five years imprisonment. He had previously pleaded guilty to an offence of possessing a prohibited weapon and for that offence was sentenced to six months imprisonment concurrent. He appeals against conviction by leave of the single judge.

	The complainant alleged that she had been raped on 30 August 1998 at the home of a friend of the appellant in Stoke-on-Trent. They had met for the first time in a public house earlier that evening. The complainant and at least one of her children were at that time living at the home of a friend F H. Late in the evening of 29 August 1998 the two women went to a public house in Fenton and struck up a conversation with the appellant and his friend. The complainant’s evidence was that the appellant asked if he could accompany them to a local night club. She said that, as they were in a queue for the night club, the appellant asked her to hide a CS gas canister for him in her clothing. She did so but returned it to him minutes later. 

	The appellant was initially refused entry to the club because of his casual clothing but was allowed to enter after changing into a shirt. Her evidence was that after the appellant had bought her a drink, she had an argument with her friend who then told her to leave her house and take her child with her. She began to cry and the appellant told her he could help her by letting her spend the night at the home of a friend of his. 

	They left the club and took a taxi to H’s house where they collected the complainant’s daughter. They went to the friend’s house where the complainant went upstairs, undressed to her underwear and got into bed with her daughter. Shortly afterwards, the appellant entered the room. She had not expected him to come up. She asked him to go away and tried to push him away. The complainant said that he restrained her and unfastened her bra. She began struggling with him and put her daughter on the floor. She said that she continued to struggle but the appellant managed to pull down her knickers. He unzipped his trousers and had intercourse with her. She kept asking him to get off and he responded by saying “You know you want it”. She gave up struggling. She did not wish to have sex with him and did not consent to sexual intercourse. One of the other men in the house, whom she had previously seen downstairs, came into the room and told the appellant to get off her. It was only when the other man said that for a third time that the appellant stopped. He then dressed and left the room. The complainant dressed herself, picked up her daughter and asked one of the men to telephone for a taxi. She did not say where she was going but in fact went straight to the police station and alleged that she had been raped. 

	When cross-examined, the complainant said that she was not drunk and had made it plain to the appellant that she did not want intercourse. She was not expecting the appellant to join her in the bedroom. He was rough with her and at one point had bitten her neck. There was no kissing or touching in bed and no consent by her to sex. She had not asked whether he had any condoms and he had not left the room to get one.

	The taxi driver gave evidence that the complainant was crying and upset throughout the journey. She had seen no kissing or cuddling between them.

	The complainant was medically examined about five hours after the alleged rape. She had what appeared to be “a love-bite bruise to her neck”. She complained that she was sore and tender but there was no bruising, swelling or reddening either inside or out. The doctor said that, if a man rams his penis very hard into the vagina of a woman who is not willing, it is likely to cause reddening and swelling but it may not do so. Any reddening depends on the severity of the struggle and swelling would require a more pronounced struggle. 

	A police officer gave evidence that, on arrival at the police station, the complainant was very upset and tearful. She made a complaint substantially consistent with her evidence. The judge warned the jury that little weight should be attached to her distress and that her immediate complaint did not support the fact that she had been raped but might be relevant in assessing the consistency of her evidence. No complaint is made about that part of the summing-up. 

	The appellant was arrested the same night. He denied rape and gave an account similar to that he subsequently gave at the trial. 

	In evidence, the appellant said that he saw the complainant and her friend enter the public house. He liked the look of the complainant and asked a female friend to ask her out on his behalf. The complainant suggested that they meet the following week. They began kissing. The complainant asked if he could accompany her and her friend to the club they proposed to visit. In the queue to enter the club, the complainant offered to conceal the CS gas canister in her clothing. Inside the club, there was an argument between the complainant and her friend and, in tears, the complainant told him she had nowhere to live. He then spoke to his friend on the telephone to see if she could stay at the friend’s house. In the taxi, they kissed each other and, after they had collected her daughter, her crying lessened. At the friend’s house he told her he would join her in a minute or so and she raised no objection. It was his suggestion and she agreed. When he joined her,  he sat on the edge of the bed and she started kissing him. The complainant asked if he was getting into bed and when they did so they immediately began touching each other. She wanted him to perform “oral sex” and was, he said, “like a nymphomaniac”. She took hold of his penis and inserted it into her vagina. 

	The complainant asked him not to ejaculate inside her since she had not had a needle contraception that month. He went downstairs to look for a condom. When he returned the complainant was cuddling her daughter, crying and saying “I shouldn’t have done this”. He leant over the bed and tried to put an arm around her; as he did so his friend walked into the room and asked if she was alright. The appellant went downstairs. He said the complainant came down twenty minutes later and was crying. She said that she just wanted to go back to her friend’s house. The appellant denied that he forced himself upon the complainant. After they had had intercourse, there had been a dramatic change in her mood. He denied that he was in the habit of taking females to the house and denied that his friend had walked in while they were having sexual intercourse.

	The complainant’s friend, F H, gave evidence for the defence. She said that shortly after the arrival at the public house, the appellant and complainant “copped off”. They had their arms around each other and were kissing at the table. H was shocked because they had only just met. She saw no signs of reluctance on the complainant’s part. On the way to the club they gave the impression that they were “full on” to each other. The quarrel in the club had been over the complainant’s possession of the gas canister. At no time did H tell the complainant to leave her home. Her argument with the complainant had not been over the appellant. At no time had she seen the complainant crying. 

	The first submission made by Mr Thorogood, on behalf of the appellant, is that the judge, in his summing-up, failed to direct the jury to consider the complainant’s evidence with caution and to look for supporting evidence. A direction such as that contemplated in R v Makanjuola [1995] 2 Cr App R 469 should have been given. There were features of the prosecution case which were so unsatisfactory that the conviction is unsafe in the absence of such a direction in the summing-up.

	Mr Thorogood relies first on the lie told by the complainant, in her written statement, about the CS gas canister. She had denied taking possession of the canister whereas in evidence she admitted that for a short time she had tucked it into her waist band while in the queue for the club. Reliance is also placed upon the inconsistency between the evidence of the complainant and her friend H as to the degree of affection shown by the complainant towards the appellant in the public house and in the club. Moreover, H’s evidence, contrary to that of the complainant, was that the complainant was not told to leave H’s home. According to H, her quarrel with the complainant was over the CS canister. It is also submitted that the fact that the complainant was prepared to mind the canister in the queue showed that she was well disposed towards the appellant. 

	Submissions are made as to the complainant’s conduct in the house where sexual intercourse occurred. The police officer interviewing the complainant appears to have noted that the complainant said that she had kissed the appellant twice but, in evidence, the police officer said that the entry may have been out of context when she was taking the notes. The complainant denied telling the police officer that she had kissed the appellant. Reference is also made to the complainant’s failure to lock the door of the bedroom. There was a yale lock and she could have done so.

	The medical evidence also casts doubt upon the complainant’s evidence, it is submitted, because no injury was found and no evidence of bite marks, as distinct from a bruise, on the complainant’s neck .

	In Makanjuola, Lord Taylor CJ, giving the judgment of this court, gave guidance as to summing-up in cases of alleged sexual offences following the enactment of section 32 of the Criminal Justice and Public Order Act 1994. That section abrogated the former requirement to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is a person in respect of whom a sexual offence is alleged to have been committed. (Section 32(1)(b)). Lord Taylor stated, at p 472:

“The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving ‘discretionary’ warnings generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the Act. Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness’s evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this Court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness’s evidence as well as its content.”

	In a series of numbered paragraphs, Lord Taylor summarised the position. The paragraphs included:

“(5)	Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge’s review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.

(6)	Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroboration rules.”

	Mr Thorogood did not set out a precise form of words which he said should have been included in the summing-up. That is not surprising in view of the flexible approach to the problem which Lord Taylor suggested. The submission is that there was a complete lack of guidance in this case and that the circumstances were such that warnings were required. 

	In Haughton Walker (transcript 18 April 1996), convictions for rape were quashed by reason of the failure of the judge in his summing-up to deal sufficiently with the credibility of the complainant. That was a case where the complainant retracted her allegations of rape stating that she was sorry for wasting the police’s time and wanted to drop the charges. She subsequently renewed the allegations. Giving the judgment of this court, Ebsworth J stated:
“The letter of retraction and the following statement admitted lying and gave motives for lying. In a case where the defence was a total denial that the offence had occurred, that, in our judgment, was an obviously significant matter which required to be brought to the specific attention of the jury.”

	The summing-up had contained no reference whatever to the retraction, the previous inconsistent statements or their relevance to the complainant’s credibility. Ebsworth J stated:

“In our view the jury needed to be reminded by the judge of those matters and of the relevance of the retraction and of the previous inconsistency and the bald fact is that they were not … it is the failure to deal with the crucial matter, which was potentially central to the credibility of the girl, and to do so in specific terms, which leads us to conclude that the conviction cannot stand. This is not a case where it can be said that the judge exercised a discretion not to give a direction.”

	In the present case, the judge made clear that issues of fact were for the jury. He stated:

“Now this case depends essentially upon what you make of the two main witnesses in this case, [the complainant] on the one hand and the defendant on the other. It’s obvious, you may think, that both cannot be telling the truth. [The complainant] told you that this defendant forced himself upon her whilst she was in bed with her baby daughter in circumstances where the defendant could have had no doubt that she was not consenting. The defendant, on the other hand, presents [the complainant] in stark contrast as a woman initially eager for sex who initiated oral sex by way of foreplay; she agreed to sexual intercourse and only stopped when she realised no contraceptive was being used, and when the defendant returned to the bedroom her mood had changed from one of sexual eagerness to one of distress.

Now what you make of this case is essentially a matter of fact for you. You use your collective experience and common sense in reaching your own conclusions as to what happened, and what the state of mind of both those two main witnesses was at the material time.”

	The judge made clear that the evidence of the complainant that she was raped was “not supported by any independent evidence”. He added that “in many cases of rape the only two people that can say what happened are the two people who were allegedly involved in the intercourse”. The judge went on to deal with the complainant’s subsequent distress and her complaint to the police and those aspects of the summing-up are not criticised.

	The judge also made clear that the jury were to consider the complainant’s credibility as a witness. He added that: “You have to judge whether any discrepancies which arose, or omissions or additions which you find, are indicative of a witness being unreliable or dishonest, or whether such discrepancies are of no real consequence in assessing whether the witness was being truthful and accurate”. At that stage, the judge’s concern was with inconsistencies between the oral evidence of a complainant and her previous written statement. It followed a full direction that the jury were the sole judges of the facts.

	Dealing with the canister, the judge stated:

“[The complainant] admits that she told a lie about the CS gas. She did not admit having it, she said because she didn’t want to get into trouble with the police.”

	The judge summarised the evidence of the witnesses, pointing out as he did so  some of the differences between them. The evidence of the appellant and of H were summarised in considerable detail. 

	In our judgment, this is not one of the “more extreme cases”, of the kind contemplated by Lord Taylor CJ in Makanjuola. There had been no previous false complaints, there was no suggestion of the complainant bearing a grudge against the appellant and (unlike Walker) there had been no retraction of a complaint of rape. Mr Thorogood submits that this is a case where the complainant “is shown to have lied” and he relies upon her denial of possession of the appellant’s CS gas canister. That somewhat bizarre feature of the case does not in our view cast serious doubts upon the credibility of the complainant as a complainant of rape. The appellant pleaded guilty to an offence of possessing a prohibited weapon. An admission in interview would have laid the complainant open to the same charge. The conduct of the complainant and appellant with respect to the CS gas canister does not in our judgment throw any significant light upon the credibility of either of them as witnesses in a rape trial. The complainant’s initial denial of having possession of the canister for a short time throws no significant light on her evidence about subsequent events in the bedroom.

	We have considered Mr Thorogood’s submissions upon the evidence in this case. The jury cannot have been unaware of the significant features of the evidence or of their important responsibilities in deciding whether the complainant or the appellant was telling the truth as to what happened in the bedroom and whether the offence of rape was proved. In our judgment, the judge was entitled to sum up as he did. He left the jury in no doubt as to the task they were required to perform and he summarised the evidence quite fully and sufficiently, and with a minimum of comment. The judge was entitled to exercise his discretion not to give any further or special warning. There were no features in the case which required what would amount to a full corroboration direction, or something less, and the members of the jury, if loyal to their oaths, cannot have been unaware of their duty to consider carefully the evidence of the complainant along with that of the other witnesses.

	The second submission made on behalf of the appellant is that the judge should have discharged the jury because of statements prosecuting counsel inadvertently made when opening the case. One of them raised the possibility that the friend of the appellant who entered the bedroom would be called to give evidence. We find no merit in this submission. As to one reference, prosecuting counsel specifically withdrew the suggestion before any evidence was called. The second originated from the complainant, not the friend, and would have been hearsay. The judge expressly, and in detail, told the jury not to speculate about what other evidence there might have been. It cannot realistically be suggested that counsel’s error in opening the case had any influence upon the course of the trial.

	Mr Thorogood submits that he was not given the opportunity to address the judge upon Makanjuola. When the point was raised, he submits, the judge gave his ruling without hearing argument. If that be the case, it is unfortunate that Lord Taylor’s reference in Makanjuola to the desirability of “discussion with counsel” on the point, was not heeded. The judge had the point in mind, however, and it is most unlikely that the judge would have changed his mind in this case.

	The jury in this case had every opportunity, in a well conducted trial, to consider the evidence upon the charge of rape and to reach a true verdict. We do not doubt the safety of the verdict they reached. The appeal is dismissed.