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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gallagher, R. v [2007] EWCA Crim 256 (23 January 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/256.html Cite as: [2007] EWCA Crim 256

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 23rd January 2007

1. LORD JUSTICE HOOPER: On 13th March 2006, at the Crown Court at Preston, the applicant was convicted by a majority of 11 to 1 of rape (count 1 on the indictment). He was acquitted on counts 2, 3, and 4. He renewed his application for leave to appeal conviction, following refused by Holland J, who said:

"I have considered the papers in your case and your grounds of appeal. I respond as follows:

1. Whilst the Jury might have been expected to return the same verdict on each of the counts they were not required to do so (there was no direction to that effect) and in the event I do not think that the acquittals on Count 2, 3 and 4 serve to make the conviction on Count 1 arguably unsafe. As to this:

a. Taken in isolation, there was abundant evidence to sustain a safe conviction on Count 1. Thus in support of the complainant's evidence was the evidence of Mr Shepherdson together with a substantial number of admissions made by you.

b. Again taken in isolation, acquittals on Counts 2, 3 and 4 can be justified notwithstanding a conviction on Count 1. Thus, although the Prosecution had identified 4 rapes in total it is as easy to construe the event as amounting to one prolonged rape with 4 episodes. Certainly the jury could justifiably have felt that to convict you of 4 separate rapes rather than just one would be unfair to you as reflecting an unjustified construction to put on the victim's evidence as to the night's events and potentially exposing you to four separate punishments.

2. As to the remaining points taken on your behalf, they were all properly before the Jury."

2. The applicant and the complainant had been in a relationship for some four years and moved in together within about a year. The complainant's evidence was that the applicant thereafter exhibited violent mood swings and would hit her. On 1st May 2005, some time after midnight, the complainant was sitting watching television when the applicant returned home from a night out. He was aggressive, "itching for a fight". He forced the complainant's legs open and, although she told him to leave her alone and that she did not want sex, he masturbated to make himself hard and raped her. The complainant's evidence was that he then allowed her to go to the toilet but afterwards raped her a further three times despite her pleas. Those further three times were reflected by counts 2 to 4.
3. The complainant complained a few hours after the incident to her employer that she had been beaten up by the applicant. Two weeks after the incident, she complained of rape to a friend. About a week after this, she complained of rape to the employer. It was not, however, until 11th June that a formal complaint was made to the police and it was the friend who had insisted that the police be called. After the incident, and even after the complaint, the applicant and complainant sent affectionate text messages to each other.
4. The prosecution relied on the evidence of the complainant and on the evidence of a next door member, who had heard screaming, crying and objects being dropped and doors banging at the house during the night in question. The prosecution relied on the evidence of the employer and the friend. The prosecution also relied upon the applicant's police interviews, in which, so it was argued, he had at the very least made admissions to actions which amounted to attempted rape. The defence case was that, although the applicant wanted to have sexual intercourse and was trying to do so, this had not happened. The defence relied, amongst other things, on the failure to complain at the time and thereafter and also upon the text messages. There was one issue for the jury, namely whether sexual intercourse in the way described had taken place.
5. It was submitted by counsel on behalf of the appellant that the jury's verdicts were inconsistent. It said that all four alleged rapes took place within a four hour period in the same day and the whole case depended on the credibility of the victim. Reference is then made in the grounds to the absence of a complaint, the timing of the complaint and the text messages.
6. The issue which we have to consider is whether it is arguable that the jury's verdicts were inconsistent. For the reasons given by Holland J, which we have set out in full, we take the view that it is not arguable that they were inconsistent. Therefore this renewed application for leave to appeal conviction fails.