Case No: 99/6108/X5
In the Court of appeal
Criminal division

Royal Courts of justice
Strand, London, wc2a 2ll

Thursday 18 April 2000

Before:

Lord Justice Buxton
Mr Justice moses
And
hh judge colston qc

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Regina

V

P.T
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(Transcript of the Handed Down Judgment of
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Counsel for Appellant	P.J Murphy (Miss L. Murrey)
Counsel for Crown		R.W Twomlow

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Judgment
As Approved by the Court

Crown Copyright ©

	JUDGMENT

LORD JUSTICE BUXTON:

The trial
Mr T., now 22 years of age, was convicted in the Crown Court at Cardiff on 6 June 1997 on two counts of rape, and sentenced to 42 months on each count consecutively, a total of 7 years.   The complainant in count 1 was J.S., then aged  16, the rape being alleged to have occurred on 15 November 1996.  The complainant in count 2 was D.M., then aged 15, that rape being alleged to have occurred on another date in November 1996.  The two complainants knew each other, but it was not the case at the trial either that the complaints had been brought on a collusive basis; or, on the other hand, that the evidence on the one count could be used as similar fact evidence on the other count.  It was Mr T.'s case that while he had had sexual intercourse with J.S., that had been with her consent; but that he had had no intercourse with, and indeed did not know, D.M..

J.S.'s evidence was that she knew Mr T., but not well.  Mr T. alleged that they had had intercourse together on one previous occasion, some two years or more before November 1996.  J.S. denied that she had ever had intercourse with Mr T., but she had heard that he had spread rumours to that effect.  There had been a confrontation between them on the matter, at which Mr T. accused her of spreading the rumour and threatened her.  That was the last occasion on which they had spoken before the alleged rape.  Mr T.'s  evidence at the trial appeared to confirm that last point, since he said that he had not spoken to J.S. for some two and a half years before 15 November 1996.  J.S. said that on 15 November 1996 she was asked by a 14-year old boy, J.C., to go to the house of a R.V. where he was babysitting to keep him company.  R.V. was Mr T.'s then girl-friend.  J.S. arrived there at about 7.30pm to find Mr T. present.  The evidence of both J.S. and C. was that Mr T. asked  C. to go and buy him a bottle of Coke, which he did.  Before that, however, according to C., Mr T. had asked J.S. to have intercourse with him and she had refused.  Once C. had gone on his errand, according to J.S., Mr T. violently raped her.  She resisted, shouting and screaming.  Mr T.'s account was that C. had told him that J.S. was coming and would like to have intercourse with him again (something that C. denied in his evidence).  When alone with J.S. he asked her to have intercourse, and she agreed; they had intercourse consensually and without violence.  Once that was over he got dressed and left the house.  He said that he had had consenual intercourse with J.S. on one further occasion, again at R.V.'s house.  That was about two weeks after the alleged rape.  Mr T. said that that had been on the same occasion as D.M. came to baby-sit, to which D.M.'s allegation of rape, to which we will shortly come, related.

J.S.'s evidence continued that she left the house, on her way out seeing a man called N.E. who asked her if Mr T. had "banged" her.  She did not reply.  E., who gave evidence for the prosecution, said that he had called at the house on a day in November 1996 and seen through the window what appeared to be two people having intercourse, without screaming or shouting.  He returned half an hour later, when the door was opened by J.S..  E. said that he told her that he knew that she had been having intercourse; she blushed, but without appearing distressed.  J.S. also said that she passed C. as she ran away from the house; he asked her what was the matter but she did not reply.  C.'s evidence as to that incident was that J.S. had been crying; when asked why she had said that she was upset at Mr T..  J.S. said that she then ran home, to her grandparents' house where she was living.  She did not want to tell her grandmother what had occurred.  The grandmother, P.S., gave evidence  that there had been an evening when J.S. had come in later than usual, at about 10.20pm, and appeared very distressed.  It was pointed out in the appeal on behalf of Mr T. that that return to the house, if it occurred on the evening in question, appeared to be a substantial time after the time of the alleged rape.

J.S. did not immediately report the rape.  She said that Mr T. had threatened to beat her up if she told anyone.  She went to the family planning clinic, giving a false name.  Two days after the rape she gave a full account of it to a friend, R.B..  On 15 December 1996 they both attended the police station and made statements.  She also told another friend, A.K., but denied that she had then said that she was going to obtain compensation for the rape.  R.B. gave evidence at the trial for the defence, in which she said that J.S. had asked her to lie to the police, and had told her that she had consented to intercourse with Mr T..  Her statement of 15 December, in which she had set out J.S.'s report to her of the rape in terms consistent with J.S.'s evidence, and stated J.S.'s distress, and fear of Mr T., had been untrue, and made at the request of J.S..  A.K. also gave evidence for the defence, to the effect that J.S. had told her in February 1997 that Mr T. had not raped her, and she was making the allegations to get her own back.

A further defence witness was L.W..  He described an evening when J.S. had come to the house of D.M.'s parents, where a group of friends were gathered, asking for a condom so that she could have sex with Mr T..  An hour later he saw J.S. in the street, where she bragged about having sex with Mr T..  L.W. said that it was still light at the time, so this must have occurred at a weekend; the evidence of both J.S. and Mr T. about the encounter on 15 November was that it had taken place after dark, as indeed the timings attributed to it indicate.

D.M. said that she had been a friend of J.S., but by the time of the trial was no longer such.  On  a date in November 1996 she had been  asked to baby-sit at R.V.'s house and went there with her elder sister L. at about 10pm.  J.S. was waiting outside, and asked D.M. to babysit because she could not stay.  D.M. went to R.B.'s house to ask if she could assist.  R.B. in her evidence said that when she went back with D.M. to R.V.'s house they found J.S. in what R.B. described as a "petrified" state for fear that Mr T. might return.  Because of J.S.'s state R.B. agreed to stay with D.M., and J.S. immediately left.  D.M. continued that when Mr T. came home he tried to persuade the two girls to stay.  They made to leave, but Mr T. persuaded D.M. to return.  Any scepticism that might be invoked by the apparent naiveity of D.M.'s alleged decision is perhaps mitigated by the reflection that D.M. was a mere 15 years of age; Mr T. at the time was  eighteen.

D.M. then said that, once she had returned to the house, R.B. having left, Mr T. violently raped her.  R.B. confirmed in her evidence that D.M. had returned to the house alone.  She added that on the following day D.M. was in an unusual mood, and in the evening told her that Mr T. had raped her.

D.M. said that when she escaped from R.V.'s house she ran home in distress and told her sister L. what had occurred.  She made no complaint to her mother or the police for some months, and agreed that she had told R.B. that she was going to drop the case.  That had been because she had been subjected to a campaign of intimidation, including the breaking of windows at her home, she said by A.K. (something that A.K. denied).  L. gave evidence confirming D.M.'s state of distress, and her evidence that because of it they had slept the night together.  She said that the following day D.M. had given her a full account of the rape, J.S. being present on that occasion.

The appeal and the application to call new evidence
Mr T. did not appeal against his convictions, nor could he have done.  The summing-up of the learned trial judge, and his conduct of the trial, cannot be criticised in any way.  He made it entirely clear to the jury that they had to decide between conflicting testimonies, and the jury decided that matter unfavourably to Mr T..  The appeal is, rather, based on new evidence that has come to hand since the trial.

Under section 23 of the Criminal Appeal Act 1968 this court's task is divided into two stages.  First, we have to decide whether to receive the new evidence.  Guidance as to our approach to that task is provided by section 23(2).  Then, to the extent that new evidence is received by us, we have to decide, in the light of that evidence and of all other circumstances of the case, whether the original conviction was safe: Stafford v DPP [1974] AC 878, as further explained in this court in Lee [1984] 1 WLR 578 at p585, per Ackner LJ.  In a case such as the present, however, it is not possible to keep those two stages as separate as a matter of procedure as the foregoing analysis would seem to suggest.  That is because, in respect of the evidence that we were invited to receive, it was not possible to decide, for instance, whether it was capable of belief, as section 23(2)(a) requires us to decide, without actually hearing it and the witness who gave it.  We therefore heard all the appellant's new evidence, making clear that in the first instance it was being heard de bene esse, but with the objective of determining, first, whether it should be received, and second, if received, whether and in what manner it could be acted on.

We further had well in mind, in both parts of this process, the evidence that had been given at the trial, and the cases and arguments that had been there adduced.  The way in which the new evidence relates to the original case, and any explanation for differences between the testimony now given and that given at the trial, is of potential importance not only at the second stage of assessing the overall safety of the conviction but also at the first stage of assessing whether the evidence now given is capable of belief.

Accordingly, we heard on behalf of the appellant L.E., J.H., C.S. and L.W..  We also listened to two tape recordings made by L.W., one of a conversation with J.S. and one of a conversation with D.M..  The prosecution applied to call in rebuttal two police officers, and in addition J.S. and D.M..  In the event we heard all of those witnesses apart from D.M..  The most convenient course will be to deal with each witnesses evidence seriatim.  Purely by way of introduction, however, we record that the appellant's evidence was directed at five subjects:

(I) a statement made by J.S. prior to the rape that she had had [consensual] intercourse with Mr T..
(II) a request by J.S. for a condom on the night of the rape.
(III) boasting by J.S. later on that same night about having had consensual intercourse with Mr T..
(IV) oral evidence of admissions made post-trial by J.S.  that she had fabricated the case.
(V) tape recordings to the same alleged effect as in (IV) above, but implicating D.M. as well as J.S..

L.W. (formerly E.)
L.E. (as we will call her, that having been her name at the time of the incidents under investigation) did not give evidence at the trial.  She made a statement in these proceedings on 24 October 1998, the substance of which she repeated before us.

Her evidence concerned items (II) and (III) listed above.  As to  the request by J.S. for a condom she said that on the night of the alleged rape J.S. had come to D.M.'s house, where a group of friends including D.M., C. and L.W. were present, and asked to be provided with a condom.  Later that evening L.E. was in the street about to get into her car with her then boyfriend, now husband, when J.S. came up to them and described in graphic and appreciative detail the sexual intercourse that she had just had with Mr T..  

L.E. further said that some weeks later she had been visited by police officers who did not tell her that they were investigating the rape, but asked about the condom incident, and whether she had supplied J.S. with a condom.  L.E. told us that she assumed that the enquiries concerned Mr T., and she told the officers the matters that she had set out in her evidence.  They appeared to note them down, but she heard no more about it and was not asked to attend the trial.  She by then had lost contact with L.W., and did not know that the trial was taking place, or that he was giving evidence substantially in the terms of her own statement to the police.
She further said that shortly after the police's visit she was telephoned by J.S., who she described as being at that time a good friend of hers, and asked her what she had said to them.  L.E. told J.S. that she had said nothing; she explained this lie by saying that she found J.S. intimidating.  L.E. said that J.S. had then suggested that they if L.E. were further contacted by the police they should co-ordinate their stories, with a view to L.E. telling the police that J.S. had complained to L.E. that she had been raped.  In her evidence J.S. agreed that she had telephoned L.E. to ask about the police's visit, but strongly denied that she had asked L.E. to lie on her behalf.

We heard evidence from the two police officers who interviewed L.E..  Their recollection was entirely based on their notebooks, which however recorded that L.E. had not been able to give them any information.  Having heard those officers, we are entirely convinced that, had L.E. related to them the graphic detail that she related to us they would have regarded it as highly significant, taken a formal statement, and followed the matter up.  L.E. was not telling the truth in this part of her evidence,  and that in turn casts serious doubt on the rest of her testimony.  The test imposed by section 23(2)(a) of the 1968 Act is not a demanding one, but this evidence does not pass it.  L.E.'s evidence is not capable of belief.

There are two further matters that arise.  First, we find very unsatisfactory the explanation that we were given as to why L.E.'s evidence was not adduced at the trial, a matter that we have to take into consideration under section 23(2)(d) of the Act.  That was based solely on the alleged failure of the prosecution to disclose to the defence the statement allegedly made, but as we now know not made, to the police.  No explanation was offered as to why L.E. was unaware about, or took no action in respect of, the trial of Mr T.: matters that on the face of her statement clearly required such explanation.  Further, L.W. told us that he had given L.E.'s name to Mr T.'s solicitors before the trial as a person who had been present when the request was made for the condom.  No explanation was given of why she had not been contacted thereafter.

Second, there is in any event a major difficulty in respect of the condom incident, item (II) above.  It was Mr T.'s case that before J.S. came to the house on the night of the rape, he having been told by C. that she would be willing to have intercourse with him, he had not spoken to J.S. for some two and a half years.  It really strains credulity very far to think that, against that background, J.S. before encountering Mr T. would have been confidently and publicly asking around for a contraceptive: and, according to L.W.'s evidence to which we will shortly come, making plain that that was in order to have intercourse with Mr T..  Those considerable doubts as to how J.S. could have assumed that intercourse was to take place on that particular evening must be reinforced by the fact that J.S. had babysat at R.V.'s house on a number of previous occasions though, on Mr T.'s evidence, without encountering him.

This discrepancy between Mr T.'s evidence as to the state of his current relations with J.S., and the evidence given by L.W. as to J.S.'s demeanour on the night of the rape, does not seem to have been appreciated at the trial; nor was it appreciated by us until our attention was drawn to it at a late stage of the appeal.  It is a serious and substantial matter to put in the scales when weighing the evidence as a whole.

J.H.
J.H. did not give evidence at the trial.  She made a statement in this appeal on 27 October 1998.  In that statement she described how she had been the girl-friend of Mr T. for about a year and a half when she was fourteen and fifteen years of age, during which time they regularly had sexual intercourse on a consensual basis.  In her statement she said that the relationship had "just fizzled out as many school relationships do" but that the two of them remained and have remained ever since very good and close friends.  This account took on a different aspect in her evidence to us.  In her evidence, she said that J.S. had been the reason why her relationship with Mr T. had ended.  It was to the intercourse between J.S. and Mr T. that caused the break-up that the first part of Miss H.' evidence (item (I)) above) was directed.   And she explained the fact that she had not given evidence at the trial by saying that she was not seeing much of Mr T. during that period, was not aware of the trial, and in any event did not wish to become involved.  She said that that was all consistent with her having made a section 9 statement in 1998 saying that she had remained good and close friends with Mr T. since 1994.

As we have said, the first part of Miss H.' evidence related to a statement allegedly made to her by J.S. at, it would seem, the end of 1995 that she had had intercourse with Mr T..  We do not pause to consider the admissibility at any trial of that evidence, because in the general context of Miss H. evidence as a whole we do not find it to be reliable.  We are of the same view of the second part of her evidence, that about three months after Mr T. had been sent to prison, J.S. had on one occasion when she met her casually taunted her by saying that she had fabricated the allegations against Mr T.: that is evidence falling into category (IV) above.  Miss H. was by that time 17 years of age, and having seen her in the witness box we do not think that she would have been incapable of taking appropriate action in relation to that statement if indeed it were made to her; yet she delayed some months before even approaching Mr T.'s family, and it was not until a year after the conversation that she made her statement in these proceedings.  We are unable to reconcile this history with her stated commitment to Mr T..  While we do not go so far as to say that her account is incapable of belief, it is not evidence that we find credible, and we are unable to act on it.

There was a further very unsatisfactory aspect of Miss H.' evidence, or rather of the way in which it was put before us.  An explanation was clearly required of why the first part of her  evidence had not been given, or at least sought to be adduced, at the trial.  This court has recently said, in Trevor [1998] Crim LR 652, that where an explanation of any detailed nature is  called for, it should be given in affidavit or statement form.  That was not done in the present case, the only explanation being a short note on Form W which said that the evidence had not been given because Miss H.' father had not wanted her to become involved.  In her evidence Miss H. said that that had not been the case.  Her father had only taken an interest in the matter in February of this present year, that is to say some three months after Mr T.'s solicitors had signed Form W, and approaching three years after the trial.  Her explanation for her evidence not being available at the trial was that which we have already set out.

We were not able to pursue this matter further, and it did not in any event arise because of the view that we took of Miss H.' evidence.  However, had we taken a different view, we would have had very carefully to review whether the consideration referred to in section 23(2)(d) of the Act nonetheless inhibited us from receiving this evidence.

C.S.
C.S. did not give evidence at the trial.  She made a statement in these proceedings on 26 October 1998.  In that statement she said that Mr T. was a close friend of a friend of hers.  In her evidence to us she said that that had not been true, but she merely knew people who knew him.

Her evidence related to a conversation at a bus stop in the summer of 1997.  She saw J.S. talking to L.W. and went up to speak principally to L.W., who was a friend of hers.  Although, according to L.W., the conversation was in general terms, C.S., who  was only slightly acquainted with J.S., asked her if it was true that Mr T. had raped her.  C.S. said that J.S. had replied that he had not.  J.S. agreed that a conversation had occurred between the three of them at the bus stop.  She said that she had never before seen C.S., and the latter had been aggressive, calling J.S. a liar and demanding to be told the truth.  J.S. in her evidence to us was adamant that she had never said that Mr T. had not raped her, and would not have done so even to stop C.S.'s aggression.

L.W., when he gave evidence before us, supported C.S.'s account.  He said that it was because J.S. had admitted that she had lied that he later agreed with C.S. that they should try to obtain such an admission on tape, with the results that we shall shortly describe.  Mr Murphy argued that that resolution on their part gave credence to their evidence that J.S. had said things that merited recording.  We have given that point careful consideration, but we are not prepared to accept the evidence of C.S. and L.W. in preference to that of J.S..  That must to some extent be a matter of impression, but we also have in mind that, unlike the admission alleged by J.H., this was not alleged to have been a boastful or flaunting statement, but one extracted by questioning.  If J.S., or anyone else in her alleged position, had been minded to admit perjury, we think it most unlikely that she would have done so under questioning in public from a person whom on any view she hardly knew.

L.W.
We have described the evidence given by L.W. at the trial.  In the appeal he gave or sought to give further evidence about those matters, and in addition gave evidence of the bus-stop conversation just discussed, and produced tapes of two conversations, one with J.S. and the other with D.M., which he had recorded unknown to them.  We deal with those matters in turn, addressing the tapes in a separate section of the judgment.

We have already indicated the difficulties that we see in relation to the alleged request for the condom.  L.W. said in terms before us, as he had said at the trial, that J.S. said that she wanted a condom so that she could shag Perry Thomas.  He had been in D.M.'s house when this request was made there, without success; he added before us that J.S. had then gone out into the street and asked people there, L.W. being able to hear from the house what she was  saying.  Bearing in mind that all of this was supposed to have occurred at about 7pm on a November evening, that evidence only reinforced our doubts about the whole incident.  And although L.W. had filed an affidavit shortly before the hearing of the appeal  in which he had sought to resile from his evidence at the trial that this incident, and the subsequent boasting by J.S., had taken place in daylight, in his evidence before us he was not inclined to accept that he must have been mistaken on that point.

The boasting to which L.W. testified both at the trial and before us (item (III) listed above) seemed to be a different incident, though the content of the boasting was explained in identical terms, from that to which L.E. testified, since the latter had been adamant that only her now husband had been present.  Quite apart from the inherent fragility of the evidence in relation to the incident, however, there were other and further reasons why we were unable to accept that it had occurred.

The jury heard a certain amount of other evidence as to J.S.'s demeanour.  We have recounted what was said at the trial by her grandmother.  We have considered, but find it impossible to draw any conclusions from, the point made on behalf of Mr T. that as a matter of timing there was opportunity for J.S. to have made boastful comments before returning home in a distressed state.  And we may note that it does not appear to have been suggested to the grandmother at the trial that she was wrong, or lying, about J.S.'s state, but rather that it might have been attributed to the comparatively recent death of J.S.'s mother.  A further consideration is, however, that at first sight it seems odd that, after having been raped by Mr T., J.S. should have continued to visit R.V.'s house.  That point does not appear to have been taken up with J.S. in cross-examination at the trial, and it is easy to see why not.  A defence witness, R.B., was expected to say, and as we have seen in the event did say, that on the evening when R.B. went to the house with D.M., in order to relieve J.S. from baby-sitting, J.S. was in a highly upset state, and "petrified" that Mr T. would return before she could leave.  It is very hard to reconcile that description with a person who some two weeks previously had been publicly boasting of her success in having intercourse with Mr T..  It is also impossible to reconcile that description with Mr T.'s evidence that that was the night on which he had his third and last episode of consensual intercourse with J.S..

For these reasons, therefore, we do not accept L.W.'s evidence and do not act upon it.  There remains the tapes of conversations with J.S. and D.M., which L.W. formally proved.

The tapes
Two tapes were produced, a comparatively short extract of a conversation with J.S., and a longer conversation with D.M..  L.W. and C.S. were the other parties to both conversations.  It would appear that the tape that we had in relation to D.M. related to the only occasion on which she was recorded.  L.W. said that he had taped conversations with J.S. on occasions other than that produced, but nothing of relevance was said.

The manner in which these tapes were produced and dealt with in the appeal was wholly unsatisfactory.  Because of the need for covert recording, the tapes were microtapes, not tapes of the conventional sort.  They were, perhaps understandably, not of good quality.  A further problem was that, as L.W. said in his evidence, he was anxious to keep the conversation going, and it was clear that in pursuit of that, and no doubt in the hope of eliciting relevant material, he and C.S. frequently interrupted or spoke at the same time as the other party.  In these circumstances, the tapes should have been subjected to professional study, with the possibility of enhancement, and certainly should have been transcribed on to tapes that could be played on a machine in court.  That is not only in the interests of convenience, but to enable all concerned to hear the tape at the same time, so that uncertainties or disputes can be dealt with on the spot.  As it was, we had to listen to the tapes out of court, on a hand-held machine.  In that manner we did listen to the whole of the parts of the tapes claimed to be relevant, and some parts of them more than once.

Transcripts were provided of the tapes, as they had been to the section 31 judge.  It was only made clear shortly before the appeal opened that these had not been professionally compiled, but had been made by Mr T.'s mother.  Although we would not wish to attribute to Mrs Thomas anything more than the mistakes understandably made by an amateur attempting to decipher somewhat confused conversations, there is no doubt that mistakes were indeed made.  In particular, after listening closely to a part of the conversation with D.M. on which the appellant particularly relied in his skeleton, though in relation to the case in relation to J.S. rather than to D.M., we concluded that various statements had been attributed in the transcripts to the wrong speakers.  Mr Murphy, having had this particular example drawn to his attention, agreed that that was so.  We nonetheless carefully attended to the tapes as a whole, in view of the importance placed on them in the appellant's case.  We have to say, however, that it is most unfortunate that the transcripts, off which it is usually easiest to work, were to some degree unreliable.  Such failure to prepare the material properly in particular handicaps the section 31 judge who, as in this case, is only provided with the transcripts.

The extract that we were given from the conversation with J.S. in our view contained nothing that advanced Mr T.'s case.  J.S. made no admission, nor anything approaching an admission.  Indeed, her  only positive statement about the actual events indicated that the day after the alleged events she had been too frightened to go out or to go to school.  Since we have not heard the other conversations, not relied on by the appellant, we cannot judge what approach L.W. and C.S. adopted to her.  However, having heard the more extensive conversation with D.M. we have reason to think that they would have made every effort to elicit helpful information or admissions.  We merely note that that was not achieved.

The conversation with D.M. was similarly unrevealing.  In the event it was only relied on for one sentence, to which we will revert below.

J.S.'s evidence
J.S. gave her evidence in a condition of marked distress.  We have warned ourselves that there might have been a number of possible reasons for that distress, not all of them helpful to the prosecution case.  However, we are at least satisfied that the distress was not simulated.  We have dealt in the course of reviewing the evidence on behalf of the appellant with the relevant evidence of J.S., and indicated where we prefer her account.

There is one other matter that we should mention.  At the end of her cross-examination counsel asked permission to put to her a handwritten document which was of a somewhat curious nature, but which appeared to contain an account of or by J.S. which included a comment on Mr T.'s private parts.  We were told that this document had been in the possession of Mr T.'s solicitors for about a fortnight.  No notification had been given to the court of its existence, or of the part that it was to play in the appeal, nor as we understood had the prosecution been told about it.  The procedure for the conduct of fresh evidence appeals in this court is flexible, and necessarily so in view of the wide range of different cases that it encompasses.  However, it was very unsatisfactory that we had no evidence at all as to the provenance of the document, no explanation of how it had come to hand, and no prior warning of the case to be built upon it.  We saw no reason not to conclude that it had been witheld in the spirit of ambush that still pervades litigation in the Crown Court.

We were very doubtful whether in these circumstances we should permit it to be used at all, but in the end concluded that fairness to Mr T. required that to be done.  J.S. when shown the document did not accept that it was in her writing.  In the absence of any further evidence about the document, and much less of any handwriting evidence (no adjournment having been sought in order to obtain such evidence) that was the end of the point.

The appeal in relation to D.M.
Very little has been said in this judgment about the case in relation to D.M..  That is because effectively nothing was produced in the appeal that undermined the safety of Mr T.'s conviction on the count relating to her.  Mr Murphy in his submissions was reduced to saying that if the conviction in relation to J.S. were unsafe, that in relation to D.M. must in reality fall with it; and that there was one reply on the tape recording where D.M. appeared to accept that J.S. had had consensual intercourse with Mr T., and that  her willingness to pursue her own complaint with that knowledge showed her unreliability.  In view of our conclusion with regard to J.S. the first point does not arise; it was however perhaps fortunate for Mr T. that we were not invited to consider the converse of the proposition.  As to the reply on the tape, it is impossible to draw any conclusion as to D.M.'s actual state of belief from one short reply in a long conversation; and even less  to draw the further conclusion that was said to arise.

It should also be borne in mind that the case put at trial in relation to D.M. was a strong one and, apart of course for Mr T.'s complete denial, largely uncontroverted.  Her sister L. gave  cogent and detailed evidence as to D.M.'s distress immediately after the rape, and of her prompt complaint about it.  We have not seen a transcript of L.'s cross-examination, but from the summing-up it appears that it was not suggested to her that her evidence was collusive: as it inevitably must have been if the defence case was correct.  Even more pressingly, R.B. who gave evidence for the defence said that D.M. had complained to her of the rape on the night after it had occurred.  We have well in mind the limited force of evidence of recent complaint.  In the present case, however, such evidence, unchallenged as it was, was  of some cogency.

We conclude that there are no grounds on which we could find that the conviction in respect of the rape of D.M. was unsafe.

The appeal in relation to J.S.
The attack in the course of the appeal on J.S. was more detailed and circumstantial than that on D.M., and has required a great deal more investigation.  We have however noted above evidence given at the trial and not challenged before us which it is difficult or impossible to reconcile with the case as put on appeal, and serious difficulties about the evidence given on appeal which makes us unable to act on it.  We do not need to repeat all those matters, which we have reviewed in the course of describing that evidence.  We do not find the conviction in respect of the rape of J.S. to have been unsafe.

This appeal is therefore dismissed in relation to both counts on the indictment.