Neutral Citation Number: [2017] EWCA Crim 941
Case No:  2016/05398/B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand 
London, WC2A 2LL 

Date: Thursday 28 June 2017

B e f o r e:
LORD JUSTICE FLAUX 

MRS JUSTICE CHEEMA‑GRUBB DBE 

SIR JOHN ROYCE 
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R E G I N A 

DWAYNE SMITH
 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr M Van Der Zwart appeared on behalf of the Appellant
Miss J Warburton appeared on behalf of the Crown
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J U D G M E N T (Approved) 
1.	LORD JUSTICE FLAUX:  On 24th October 2016 in the Crown Court at Nottingham following a trial before Mr Recorder Paul Mann QC and a jury, this appellant, now aged 29, was convicted on two counts of rape, unanimously on count 1 and by a majority of 11 to 1 on count 2.  On 4th November 2016 he was sentenced by the Recorder to five years' imprisonment on count 1 and four years' imprisonment consecutive on count 2, a total of nine years' imprisonment.  He now appeals against conviction with leave of the single judge.  
2.	The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence with the consequential reporting restrictions.  This judgment is anonymised accordingly.  
3.	The facts of the offences were as follows.  On 8th April 2015, the first complainant, KS, went out with a friend in Newark.  They visited a number of places before going to the White Hart Public House at approximately 10 pm, where they continued to drink alcohol until about 2 am.  Whilst in the White Hart, KS met the appellant who was a singer and guitarist at the pub.  She gave him a massage.  When her friend decided to go home, she remained with the appellant and his friend Devon Priestley.  Upon realising she had lost her house key, the appellant invited KS to stay at his flat above the pub, which she said she did because she felt safe with him.  He changed the sheets on the bed and said he would sleep on the floor.  They drank some more and she took some ecstasy.  When they went to bed it was getting light.  
4.	Her evidence at trial was that some time later she awoke and found the appellant on top of her, trying to kiss her, with his penis inside her vagina.  She pushed him away and slapped his face.  He immediately accused her of leading him on and groping him.  When he left the room she woke Devon, who was also in the bed, and said the appellant had raped her.  Shortly after she left the flat and informed the police she had been raped.  
5.	The appellant was subsequently arrested and interviewed.  He said that he woke to find KS lying next to him with her back against his front. His jeans had been pulled down and KS was playing with his erect penis.  She put his penis into her vagina, at which point he pulled away and told her to "fuck off".  
6.	Count 2 on the indictment related to an incident nearly 12 months later.  On 31st March 2016 the second complainant, DL, went to the White Hart with her friend A.  At closing time the appellant and his friend Miguel invited them back into the pub.  They went upstairs where they all continued to drink and to chat.  A and Miguel went to the shops and while they were out DL and the appellant had consensual sexual intercourse.  DL and A stayed in the flat overnight and left the following morning.  
7.	Shortly thereafter DL told the police that after she had had consensual sexual intercourse with the appellant he had raped her whilst she was asleep.  In her evidence she later said that they had in fact had consensual sexual intercourse twice, but she had then gone to sleep and had awoken to find him having sexual intercourse with her without her consent.  
8.	Later that day the appellant was arrested and interviewed.  He said that he and DL had had consensual sexual intercourse on one occasion and that no further sexual activity had taken place between them.  He had not raped her.  
9.	The prosecution case was that the appellant had raped both complainants in similar circumstances; the complainants were telling the truth and it was too much of a coincidence for two women who did not know each other to make such similar allegations one year apart.  The prosecution relied upon the evidence of the appellant's former partner, KJ, who despite not knowing either complainant made a similar allegation against the appellant.  Her evidence was that on a number of occasions she woke to find the appellant having sexual intercourse with her and he would suggest that it was her fault for arousing him.  On one occasion she went to bed and lay on her stomach.  She had her eye mask on but deliberately stayed awake to see what would happen.  Shortly thereafter she felt the appellant move her leg to one side before penetrating her with his penis.  She confronted him about it the next morning but she did not report the matter to the police until their relationship had come to an end and the appellant had been charged in respect of the other two allegations.  This incident formed count 3 on the indictment, another count of rape, which was originally before the jury.  
10.	At the end of the prosecution case the Recorder acceded to a defence application of no case to answer on count 3 on the basis that whilst KJ's evidence clearly showed the appellant intended to have sexual intercourse with her when she was asleep, she was not in fact asleep but only pretending to be and had freely consented to what he then did.  In those circumstances the Crown could not prove non‑consensual intercourse.  
11.	After that application succeeded, counsel for the appellant, Mr Van Der Zwart, who also appears before this court, made an application to discharge the jury, which the Recorder refused, allowing the prosecution to adduce the evidence of KJ as evidence of the appellant's bad character under section 101(1)(d) of the Criminal Justice Act 2003.  
12.	The defence case in relation to count 1 was that the appellant did not deliberately penetrate KS.  He awoke to find that she had inserted his penis into her vagina at which point he immediately withdrew.  In relation to count 2, it was that the appellant and DL had consensual sexual intercourse on one occasion only.  On both counts the defence case was that both women had fabricated the allegations as they were ashamed about their own behaviour.  KJ had acquired knowledge of the other two complaints before making a complaint of her own and she did so out of revenge and to ensure that the appellant was kept away from her family after the break-up of their relationship.  The issue for the jury on both counts was thus consent.
13.	Two of the three grounds of appeal relate to the Recorder's refusal of the defence applications under section 41 of the Youth Justice and Criminal Evidence Act 1999 in each case to cross‑examine the complainant about previous sexual behaviour.  The third ground relates to the Recorder's refusal of the defence application to discharge the jury, to which we have already alluded.  
14.	In the case of KS, the application under section 41 was to cross‑examine her about the fact that, on the night in question she had told the appellant that she had been raped on a previous occasion.  This was said by Mr Van Der Zwart to be relevant to two issues: (1) whether KS would willingly go to the room of two men she had not met before unless she was anticipating some sexual activity; and (2) whether the appellant would, with that knowledge, rape her.  In relation to the first of those matters, the Recorder ruled that it went directly to the issue of consent and was not admissible under the section.  The Recorder accepted that the second matter did not go to the issue of consent but to the basic issue as to whether the appellant had raped the complainant.  However, he noted that by virtue of section 41(2)(b) leave to cross‑examine can only be given if the court is satisfied that the refusal of leave might have the result of rendering the conclusion of the jury on any relevant issue unsafe.  He concluded that he could not be so satisfied.  He said that at best this was a weak jury point and defence counsel had much stronger points to make.  
15.	In his submissions to this court, Mr Van Der Zwart maintains that the first matter was not an issue of consent although it had a bearing on the ultimate issue of consent.  In relation to both matters he submitted that the effect of the ruling was to prohibit the applicant from telling the jury about a relevant conversation between him and the complainant and from explaining his thought processes to the jury, meaning that he had to edit his account of events which no defendant should be required to do.
16.	Whilst the application under section 41 was quite a proper one to make, we are satisfied that the Recorder's ruling was correct.  The first matter which the defence raised clearly did relate to an issue of consent which did not fall within section 41(3)(b) or (c).  In any event, we agree with Miss Warburton for the Crown in her Respondent's Notice that the evidence about the remark, if it was ever said, would not in fact have assisted the jury but would have raised satellite issues such as whether it was said and if so whether it was true.  The second matter went only to whether the appellant was or was not more likely to have raped the complainant if she had previously been raped, whereas the issue for the jury was whether he had done so or, as he claimed, she had assaulted him sexually.  The Recorder was right to conclude that at best this was a weak jury point which would have served no purpose other than to invite speculation on the part of the jury.  The Recorder correctly concluded that refusing leave would not render the conviction unsafe.  In our judgment there was no error in the Recorder's ruling in relation to count 1.  
17.	As for Mr Van Der Zwart's submission that the effect of the ruling is that the appellant had to edit his account of events, that is one of the inevitable effects of the restrictions which are imposed upon not only cross‑examination of the complainant but also the adducing of evidence about matters concerning sexual behaviour which Parliament has put in force in the 1999 Act, and section 41 in particular.
18.	In the case of DL the application under section 41 was to cross‑examine her about an allegation of sexual misconduct which she had made against a teacher at her school in 2008 when she was 13.  She had claimed that she had been touched inappropriately on two separate occasions.  The teacher denied this and no action was taken against him.  The defence sought to challenge her, not about the truth of that allegation, but the fact that four months later when the school was considering whether to exclude her she had conceded to officers from the education committee that the allegations may all have been a vivid dream.  
19.	By agreement with the Recorder and defence counsel, Miss Warburton spoke to DL about this incident before she gave evidence.  DL insisted that the allegations she had made were true and that she had said to the education officer that they were a dream because she felt no one was behind her or believed her and it all made her feel frightened.  She accepted that it was not true that it was a dream.  
20.	Mr Van Der Zwart submitted that either way this was a lie about a sexual complaint which went to her credibility which was a crucial issue in the case.  He reminded the Recorder that the complainant had been less than frank in her original account to the police, not having told them that she had had consensual intercourse with the appellant on her account in evidence twice before he allegedly raped her when she was asleep.  
21.	The Recorder said that whilst he accepted that her credibility was a relevant issue in the case, it was unrealistic to regard a false explanation for withdrawing an allegation against her teacher as amounting to lying about a previous sexual incident given that she maintained that the allegation was true and had explained why she eventually withdrew it.  The Recorder considered that the defence were in effect seeking to impugn her credibility as a witness, contrary to section 41(4) of the 1999 Act.  But even if he were wrong about that, he was satisfied that disallowing this line of questioning would not render any conviction unsafe.  
22.	He also considered the application of section 100 of the Criminal Justice Act 2003 on the basis that the application being made on behalf of the appellant by Mr Van Der Zwart was also an application to adduce evidence of the bad character of KL, someone other than the defendant.  The Recorder concluded that the evidence did not have substantial probative value in relation to a matter which was in issue in the proceedings and was not of substantial importance in the context of the case as a whole.  
23.	Considering the various factors in section 100(3) he said that to the extent that she had lied, it was eight years ago when she was 13 and on any view she was in a position where the school had not given her the support that these days one would hope that they would.  The Recorder concluded that even if she had lied, including this evidence would not make it more or less likely that she was telling the truth in the present proceedings and it was difficult to see how any reasonable jury could attach any weight to it.  
24.	In his submissions to this court, Mr Van Der Zwart submits that either DL had lied in making the allegation in the first place or in her explanation to the education authorities.  It was important bad character evidence relating to another earlier sexual allegation she had made which should have been admitted either under section 41 of the 1999 Act or under section 100 of the 2003 Act.  He submitted that the defence should have been entitled to make the point to the jury that DL had lied about allegations of being the victim of sexual assault in the past, so would the jury be able to rely upon her when she said she was the victim of sexual assault by the appellant?  Mr Van Der Zwart submitted in his perfected grounds that in ruling that this was no more than an attempt to impugn her credibility the Recorder had effectively accepted her explanation to Miss Warburton but that was a matter that should have been left to the jury.
25.	Although we accept that this was again a proper application to make, we consider the Recorder correctly applied the relevant principles and engaged in a careful balancing exercise in reaching the conclusion under section 41(2)(b) of the 1999 Act that the exclusion of the evidence would not render the conviction unsafe. Even if it was bad character evidence within section 100 of the 2003 Act, it was not of substantial probative value for the reasons he gave.  Like the Recorder, we consider that no reasonable jury would have placed any weight on whether she had lied eight years ago.  In our judgment there was no error in the Recorder's ruling on count 2 or in the balancing exercise in which he engaged.
26.	The final ground of appeal relates to the Recorder's refusal to discharge the jury.  In his ruling the Recorder noted that it was common ground that the best way to approach the application was to consider what his ruling on bad character pursuant to section 101(d) of the 2003 Act would have been in relation to KJ's evidence, if there had never been a count 3 on the indictment.  He also noted that the defence accepted that the subsection was engaged.  Her evidence went to an important issue between the prosecution and the defence, namely his propensity to have sex with women believing them to be asleep and the likelihood of three women independently making up allegations of a similar nature.  
27.	He referred to the fact that the defence submitted that the court should have excluded the evidence under section 101(3) on the grounds that its admission would have such an adverse effect on the fairness of the trial.  The Recorder concluded that KJ's evidence had substantial probative value.  If the jury were sure that each complainant made her allegation independently of the other, the likelihood that each made a false complaint against the same man in similar terms was remote.  The Recorder concluded that the defence was in the same position that it would have been in if he had not acceded to the submission of no case to answer in relation to count 3.  The defence had always been at risk of the evidence being treated as bad character evidence whether count 3 was on the indictment or not. He ruled that any undue prejudice was far outweighed by the probative value of KJ's evidence. The application to discharge the jury was dismissed and leave to treat her evidence as bad character evidence against the appellant pursuant to section 101(1)(d) of the 2003 Act was granted.
28.	In his submissions to this court, Mr Van Der Zwart accepts that it is routine for juries to consider remaining counts on an indictment when other counts have been withdrawn from them. But he submitted that this was not a routine case. The evidence that the jury had heard, specifically in his cross‑examination of KJ about prejudicial aspects of their relationship and what she said he had told her about the complaints by KJ and DL was, he submitted, much too prejudicial to make the trial fair and notwithstanding the Recorder's direction to the jury in relation to such evidence, it would not have been possible for them to disregard it as they should have done.
29.	The Recorder did not, as Mr Van Der Zwart accepted in his oral submissions today, in fact direct the jury to disregard KJ's evidence. Rather, he gave them a full and careful direction on cross‑admissibility which was an issue which had been discussed at the outset of the trial between the Recorder and counsel. This was to the effect that if the jury concluded that, at the time when she made her complaint KJ did know or may have known that the other complainants were alleging that they had been raped in their sleep, the jury could not treat her allegations as independent or in any way supportive of the other complainant's allegations and must put her evidence out of their minds. On the other hand, if they were sure that the witnesses' allegations were truly independent of each other, the jury were entitled to consider how likely it was that three people independently of each other would make similar allegations which were untrue.  If they considered it unlikely they could treat each witness' evidence as supporting the other's. In our judgment that direction on cross‑admissibility was careful, full and fair and no criticism could be or indeed is made of it.
30.	Contrary to Mr Van Der Zwart's submissions, the fact that at the end of the prosecution case the Recorder refused the Crown leave to amend the indictment to include an additional count of rape in respect of the previous occasions when, on KJ's evidence the appellant had had sexual intercourse with her when she was asleep, does not suggest that his refusal to discharge the jury was in error. His reason for refusing permission to amend the indictment is that he accepted Mr Van Der Zwart's submission that if this additional count had been on the indictment from the outset, he would have conducted the defence case differently. Specifically, he would have explored more matters in cross‑examination than he needed to in relation to the existing count. The Recorder considered that there was potential prejudice to the appellant if such a late amendment were allowed, which could not be satisfactorily remedied.  However, in our judgment the Recorder rightly rejected the submission that the same prejudice would remain if the prosecution were allowed to treat KJ's evidence as bad character evidence against the appellant under section 101(1)(d) of the 2003 Act at the end of the prosecution case. Irrespective of whether there was a count 3 or not, the defence was always at risk that the Crown would make such an application to adduce the evidence of KJ as bad character against the appellant and, as the Recorder said in his ruling, the cross‑examination of KJ was plainly intended to cover that eventuality, for example by questions beyond the specifics of count 3, aimed at exposing the risk that she knew before she made her allegation that the other complainants had accused him of raping them when they were asleep. 
31.	In our judgment, contrary to Mr Van Der Zwart's submissions, there is no illogicality between the learned Recorder acceding to the submission of no case to answer but refusing to discharge the jury and allowing the application under section 101(d) of the 2003 Act. This is because, as we have said, the reason for acceding to the submission of no case to answer was that, on KJ's own evidence the prosecution would not be able to establish that the appellant had in fact committed the offence set out in count 3. It was not an application which was allowed on the basis that her evidence was in some respect so unbelievable that no reasonable jury properly directed could ever convict.  It seems to us in those circumstances that the Recorder was entitled to conclude that KJ's evidence was of such probative value as to outweigh any prejudice to the appellant from its admission. Once that evidence was admitted, the defence was bound to challenge it in cross‑examination by putting to her the various matters which they did to the effect that she was motivated by revenge and that she had known about the detail of the other woman's complaints when she made her own complaint. Accordingly, as we have said, the material that Mr Van Der Zwart categorised as so prejudicial would have come out in evidence even if there had never been a count 3.  In the circumstances the Recorder was right to refuse to discharge the jury.  He proceeded to give a full and fair direction on cross‑admissibility of which, as we have said, no separate complaint is made.  This conviction was safe and this appeal must be dismissed.