No: 201702895 
Neutral citation number: [2018] EWCA Crim 717
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 20 March 2018
 
B e f o r e:

LORD JUSTICE SIMON 

 MR JUSTICE GOOSE 

HER HONOUR JUDGE TAYTON 
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 

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R E G I N A 
v 
JACK STEPHEN MATHIESON 

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Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street  London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
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Mr T Siddle appeared on behalf of the Applicant

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J U D G M E N T
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1.	MR JUSTICE GOOSE:  On 26 May 2017 in the Crown Court at Snaresbrook before his Honour Judge Del Fabbro the applicant Jack Stephen Mathieson was convicted of attempted rape.  He was subsequently sentenced to 4 years' detention in a Young Offender Institution and was ordered to comply indefinitely with the provisions of Part 2 of the Sexual Offences Act 2003 in relation to notification to the police.  His application for leave to appeal conviction was refused by the single judge.  The applicant renews his application for leave before this court.
2.	The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence such that no matter relating to the complainant shall during her lifetime be included in any publication if it is likely to lead to members of the public to identify her as a victim of the offence.  This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
3.	On 14 November 2016 at around 6.00 pm the complainant was walking along Falmouth Avenue in Waltham Forest looking for her car having forgotten where she parked it.  She became aware of a person immediately behind her who grabbed both of her arms.  Thinking it was someone she knew, she looked over her shoulder and realised she was being held by a male she did not know.  That male smiled and pushed her to the ground.  She then landed on her back and the male got on top of her.  The complainant kicked out and repeatedly hit the male to the stomach but he retained his grip on her upper body to try to stop her from punching him.  He also held her around her waist whilst reaching under her skirt and pulling at her tights from the waistband area down to the crutch.  The complainant continued to struggle and screamed for help.  A vehicle stopped and the occupants got out of their car.  The man ran off and whilst doing so pulled up his tracksuit bottoms, revealing that he was wearing red boxer shorts.  The complainant's tights were later forensically analysed and a DNA profile matching that of the applicant was recovered from the biological material on the tights at the position around the site of the rip.  
4.	The applicant's case was that he accidentally bumped into the complainant but had never intended to grab hold of her, nor did he have any sexual intent.  The applicant's evidence at trial was that he was in the area looking to buy cannabis, he accidentally bumped into the complainant and she became aggressive.  She threatened to kick him between the legs and then did so, so he fell to the floor.  Frustrated at what had happened, he tried to grab the complainant to stop her running away and caused her to fall to the floor.  The complainant then began screaming hysterically and the applicant was panicked by her reaction.  He ran away.  
5.	The applicant was aged 20 at the time of this offence and of good character, save for a caution for cannabis possession when he was aged 16.  The applicant's mother gave evidence and described her son telling her of an incident when he had bumped into a woman and she had kicked him.  
6.	At the close of the prosecution's case a submission of no case to answer was made by the applicant.  It was contended that there was insufficient, or no, evidence that the applicant intended to rape the complainant.  Further, it was submitted that such acts of the applicant as were described by the complainant were insufficient to be attempts to commit rape.  They did not go beyond the point of preparation.  Reliance was placed on such decisions such as R v Geddes [1996] Crim LR 894, R v Maurice Ferriter [2012] EWCA Crim 2211 and R v Beaney [2010] EWCA Crim 2551.  The applicant's contention was that the jury required sufficient evidence of an intention to commit rape and also of acts that went beyond mere preparation.  
7.	In his ruling the judge reminded himself of the evidence necessary for proof of the offence of attempted rape in accordance with the submissions made by the applicant.  In finding that there was sufficient evidence for the offence he stated at page 2H to 3C of the ruling:
"What followed is relevant in my judgment in the jury's consideration, namely the defendant getting on top of her, as she described it.  He was fully on top of her, facing her as she was on her back.  She was trying to get him off her.  She was punching at his belly.  She repeatedly said that in her evidence, at which point she felt his hands under her skirt tugging at her tights, and as we have seen, the tights were quite dramatically torn.  I do recall the evidence that she felt the tights tearing around the back, around the posterior, and of course, we see the tights today, a large tear.  What is telling about that tear is that it is in the upper part of the tights, not down the leg.  The tear is essentially around the midriff of the complainant.  That is the situation as it presented itself to the complainant as she was lying there screaming in reaction to this violent encounter." 
8.	It was also an undisputed fact that the biological material recovered from the tights, with a matching DNA profile to the applicant, was positioned in the area of the tear.  Further, the judge identified as relevant the fact that the complainant described the applicant running away and pulling up his tracksuit bottoms as he revealed the red boxer shorts.  
9.	The applicant raises two grounds of appeal, firstly, that the judge wrongly refused the application to stop the case at the close of the prosecution case pursuant to the decision in R v Galbraith (1981) 73 Cr.App.R. 124.  Secondly, that the judge's summing‑up was biased and prejudicial to the applicant in that it wrongly proffered an opinion as to the implausibility of the account.  
10.	We have considered carefully the submissions made on behalf of the applicant, which criticise the judge's refusal to accede to the submission of no case to answer.  The task of the judge was to determine if there was evidence that the jury could rely upon, to infer an intention by the applicant to rape her and also that his act went beyond mere preparation.  We are satisfied that the judge applied the correct test in making his ruling and identified the evidence which was relevant to the central issues.  The evidence by the complainant of the applicant putting his hands up her skirt, tearing at her tights as he lay on top of her, restraining her, was clearly important.  Further, the fact that she was pushed to the ground before the applicant got on top of her and afterwards, whilst running off, was seen to be pulling up his tracksuit bottoms and exposing his red boxer shorts was highly relevant.  In our judgment, this evidence clearly answered the submission made on behalf of the applicant, a submission correctly rejected by the judge.  
11.	The applicant, in his second ground of appeal, seeks to argue that the judge was biased against him during the course of the summing‑up.  The applicant refers to three particular passages which are to be found at page 10G to 11A, 12F to G and 20B to C.  It is not necessary to repeat these passages in this judgment.  They each contain examples of the judge posing questions to the jury that they might ask themselves.  They were prefaced at page 3D to F with a direction that the jury decide the case and should ignore any views of the judge if they disagreed with them.  
12.	We have considered carefully each of the passages criticized by the applicant.  Whilst the emphasis used by the judge might have betrayed his views rather more clearly than they should, they do not begin to demonstrate any prejudice or bias by the trial judge.  Indeed, reading the whole of the summary and directions, we are satisfied that it is fair, balanced and appropriate in its identification of the issues.  
13.	In conclusion, we do not consider that either the grounds of appeal are arguable, and accordingly, we dismiss this application. 
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