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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 >> W, R v [2002] EWCA Crim 1603 (17 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/1603.html Cite as: [2002] EWCA Crim 1603

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Monday 17th June 2002

17th June 2002

1. LORD JUSTICE TUCKEY: On 30th October 1995 in the Central Criminal Court before His Honour Judge Rogers QC and a jury the appellant, C W, was convicted of rape by a majority of ten to two after a six day trial and sentenced to seven years' imprisonment. The following year his application for leave to appeal against conviction was dismissed by the single judge and not renewed. The single judge granted leave to appeal against sentence, but that was subsequently dismissed. He now appeals against conviction upon a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. The reference is made on the ground that trial counsel's failure to advise the appellant to call his sister, Marie, as a witness at trial could render the conviction unsafe.
2. The facts are as follows. The complainant, D, was a 15 year old school girl at the time of the alleged offence and a virgin. She was a school friend of the appellant's sister, Marie, and had developed a "crush" on the appellant who was 25 then. She openly admitted that she "fancied" him. She told him that she was 16. On two previous occasions she had engaged in sexual activity with him which involved her masturbating him and he fingering her.
3. On 20th March 1995 D and the sister went to the sister's house after school. The appellant joined them later that afternoon. D's evidence of what happened that afternoon was as follows. Whilst they were downstairs the appellant tried to kiss her and she punched him in the crutch because she was annoyed by something he had said in an earlier conversation. The appellant then dragged her against her will to the foot of the stairs where she sat down. He then lifted her up and, despite his sister saying "put her down", carried her upstairs over his shoulder where she banged her head on the landing. He then took her into the bedroom, shut the door, put her on the bed and held her down by her hands whilst lying on top of her. She told the appellant to get off and he did. She got up and went towards the door whilst he reached for a condom from the top of the cupboard. He then pushed her back onto the bed. She tried to fight him off, but he lifted her legs up and pulled her knickers to one side. He then put his penis in her vagina and raped her. She could not see if he was wearing a condom or if he ejaculated, but she felt him between her legs trying to push himself up inside her and it really hurt. In cross-examination she said that whilst this was happening she was crying, shouting, swearing and calling out for help from her friend. She went downstairs crying after the appellant had told her to "fuck off". She told the sister that the appellant had raped her. When he came down the appellant said he had done nothing. He tried to make it up to her, but she would have nothing to do with him. She then went to the bathroom where she discovered that she was bleeding.
4. Later the sister telephoned a school teacher who came to the house and walked her to the home of one of her uncles. The teacher's evidence was that on the way D kept saying, "Why did he do this to me?". She told him that she had been screaming when the appellant had forced himself on her and he then "did it". She knew he had not used his fingers as he had claimed because she had never bled before.
5. The following day D went to the police and was examined by a doctor. The doctor said she had found two fresh partial tears in the hymen and a further small tear which were consistent with a post-pubic woman who had experienced her first act of sexual intercourse. In cross-examination however she said she could not discount the possibility that what she had found had been caused by use of fingers rather than a penis.
6. The appellant gave evidence. He told the jury how, whilst downstairs, he tried to kiss D on the cheek but she told him not to and punched him in the crutch. She had been upset and left the room. He followed her into the hall and then carried her upstairs where he put her down on the landing. She then followed him into his bedroom where they cuddled and fell onto the bed. He wanted to have sex with her using a condom but when he went to the wardrobe he found the condom packet empty, so he went back on to the bed and said he was not prepared to have sex with her without a condom. She wrapped her legs around his waist and did not object when he put two fingers inside her vagina. She said she did not want to have sex and he said they were not having sex. She became upset when he took a hair clip which had fallen from her hair, but she was not crying or screaming at any time. When they came downstairs, she accused him of having sex with her. He said he had only used his fingers.
7. Before trial the appellant's solicitors had taken a 16 page statement from the sister. At the trial he was represented by experienced counsel who in her pre-trial advice referred to the sister's evidence as being "vital" and asked for further information to be obtained, which it was in the form of a second statement.
8. It was clear from the sister's statement that she was a close friend and confidant of D and that D had disclosed to her details of her earlier sexual encounters with the appellant. The sister's statement contradicted a number of important details of D's evidence about what happened on 20th March. She said that she saw her brother carry D upstairs and in view of what she knew of their relationship she thought she knew what was likely to happen. She turned the television down to mute in the hope that she could hear what was going on. She could hear her brother's voice upstairs but not what he was saying. She added:

"I can definitely say that I did not hear any screams or shouts et cetera. If anything at all had been going on like [D] Has alleged, then she would have called out my name."

9. The two were upstairs for 20 to 30 minutes. When D came downstairs she said, "He has popped me". By this the sister understood that her brother had used his fingers again, because that is how they had described it after this had happened previously. At this time D was not crying. When her brother came into the room, the sister asked him why he had "popped" D and he said, "I didn't pop her, I only fingered her". She confirmed that when he had gone to comfort D, D had moved away. D then went to the bathroom and returned to say that she was bleeding, after which she started crying. She said, according to the sister:

"'How am I going to tell my mother that the appellant had sex with me?' I said to her, 'I thought Chris said that he had fingered you'. At that point she said, 'No, he pushed his hood up me'."

10. There was then a further discussion in which D explained that it would not be easy to tell her mother about what had happened because she was a Jehovah's witness at which point, according to the sister, D suddenly said that she was going to tell her mother that she had been raped. The sister then said:

"When the above comment was made my head started spinning and I was gobsmacked. I said to her, 'What do you mean the appellant raped you?', and she said, 'Didn't I tell you? He pushed it up there with force'."

11. There is no doubt from the transcript that trial counsel used the sister's statements to good effect to cross-examine D, in some instances putting things to D which could only have come from the sister. D accepted some but not all of the matters which were put and did not accept the important details to which we have already referred.
12. At the end of the prosecution case the jury sent a note asking what had happened to the sister. In other words, they were expecting her to be called to give evidence, perhaps, one can infer, by the prosecution. The judge subsequently dealt with this in his summing-up by saying:

"The prosecution obviously chose not to call her -- it is perhaps not surprising that the defence chose not to call her. That means her evidential contribution to this case is nil."

13. We are not sure quite what to make of this, but the judge does refer to the fact that the jury's question had already been dealt with by defence counsel, one assumes in her final speech, when no doubt she said that as it was for the prosecution to prove their case it was for them to call the witness if they wished. This may explain the judge's reference to the defence not calling her. Be that as it may, however, we think it is significant that the jury were obviously aware of the potential importance of the sister as a witness to the events with which they were directly concerned because she was present in the house throughout.
14. It is clear that the decision not to call the sister was made before the appellant himself gave evidence. We have not heard evidence from trial counsel but with the agreement of both counsel we have considered her letters to the Commission and to the Registrar which fully and clearly set out her recollection of what happened and why. We add in parenthesis that we have dealt with the evidence of the sister in the same way and have assumed that she would have given evidence at trial, if she had been called, in accordance with the statements to which we have referred. She had in fact attended the trial and has attended this court and has made it clear at all times that she was willing to give evidence.
15. Going back to the decision not to call her, it is clear that trial counsel went through the sister's statements with the appellant in great detail, noting those parts of it which were helpful to his case, those parts which were unhelpful and those which were already in evidence or inadmissible. What she says in her letter to the Commission of 19th September 2000, having referred to the annotated statement, is this:

"From the various entries I can see that the decision of whether to call the sister exercised our minds considerably. It is apparent that her proof was extensively analysed with the defendant to see what the overall effect of her evidence might be. The position was summarised on the front page and different ways of dealing with the potential problems were considered on the back page. In such cases it is impossible to know what the outcome of each decision will be and ultimately the defendant must make a choice based upon the relevant considerations. It is apparent from the endorsement what the appellant's choice was."

16. That is a reference to the endorsement on counsel's brief which says:

"I have discussed the question of my defence with my legal advisers. I have decided not to call Marie as a witness."

17. It is signed and dated by the appellant.
18. In a subsequent letter Miss Joseph says:

"Whatever the pros and cons, having pointed them out in detail, in a case of this nature I would have allowed the defendant to make his own decision."

19. It is clear, therefore, that she did not advise positively that the sister should be called to give evidence.
20. The potential problems referred to in the earlier letter need to be explained. The sister had provided the defence with some photographs of D in what were alleged to be sexually provocative poses which they used to some effect to suggest that D had been intent on titillating the appellant. D she denied this, saying that she had simply been fooling around and that the photographs were just a joke between girls. At trial the defence discovered that the prosecution had a number of similar photographs of the sister. The problem which those photographs created was explained by trial counsel in a letter to the Registrar where she said:

"If the photographs of Marie were produced before the jury, there was a very real risk that they would:

i. support the complainant's account of how the photographs of her came into existence, as no more than a joke between girls; and possibly undermine how they came to be in the appellant's possession

ii. undermine the impact made by cross-examination of the complainant in relation to her actively provocative behaviour towards the appellant

iii. undermine the appellant's credibility, the cross-examination having been based on his instructions

iv. the question of Marie's credit would only arise if ... it was put to her that the 'complainant photographs' were a joke in their circle of friends, and Marie denied this. Then, production of the 'Marie photographs' would undermine her credibility.

v. any matter affecting her credibility, and suggesting she was supporting her brother against her friend might adversely affect the appellant's case."

21. Mr Scobie, counsel for the appellant, in his written submissions to this court criticises the concern expressed by counsel about "the Marie photographs" on the basis that it was unjustified, and even if there was some justification for it the photographs could do little harm. However in his oral submissions to us today Mr Scobie did not press those criticisms and we think he was right not to do so. It seems to us that Miss Joseph's analysis of the potential risk posed by the photographs was a perfectly reasonable one in the circumstances.
22. However, the appellant believes, as is clear from the statement which he made to the Commission, that the existence of these photographs was the only reason why his sister was not called. This is obviously not the case, as the contemporaneous documents show, although it may have been the main reason why he decided she should not be called because, as he says, he did not see why photographs of her should be used when she was not on trial.
23. In her summary of the potentially helpful aspects of the sister's evidence, which she wrote on the face of the witness statement, trial counsel refers to:

"1. Only joking downstairs?

2. No screams from upstairs.

3. D's first complaint was not of force, but of sexual intercourse. Only later did she add force."

24. She has amplified what she saw as the unhelpful aspects of the sister's evidence in her letter to the Registrar. They are:

"that D had not intended to have intercourse with the appellant but in the past had been happy to have sexual contact with him short of intercourse. However when she came downstairs she was no longer happy to have him near her or touch her."

25. This, it will be recalled, was D's evidence and it was supported by the sister.

"that D was alleging sexual intercourse ('popped me' and 'put his hood up me'); and that she first made this allegation before she knew she was bleeding."

26. This is not strictly accurate as the events which we have already recited make clear.
27. Next:

"that soon after, D was distressed and crying but could not think how to tell her mother she had been raped.

that D had instigated a hunt for the condom she said had been used -- although it was not found it may well have been taken to indicate her state of mind.

that D clearly believed the door had a lock -- although it didn't, it may well have been taken to indicate her state of mind.

Marie recalls that before they went upstairs the appellant and complainant were on the sofa in the sitting room. She gives no description of the incident attested to by both parties of the blow to the crutch et cetera."

28. Those are the essential facts upon which we have to decide this appeal.
29. There has been some debate before us about the approach this court should take when considering whether a conviction is unsafe as a result of some alleged failure on the part of trial counsel. We have been referred to a number of the cases. It is clear that this court will only interfere in an exceptional case where it considers that the conduct complained of amounts to a serious misjudgment or failure to give advice. A simple mistake or an understandable tactical decision which turns out to be wrong is obviously not enough. However the focus today is upon the effect of the conduct complained of on the safety of the conviction, rather than upon the degree of fault and how it might be characterised.
30. The decision to be made in this case was ultimately one for the appellant, but we think he was entitled to be given advice as to what that decision should be if the circumstances demanded it. There were obviously potential disadvantages in calling the sister. But in our view the advantages of calling her were overwhelming and so the appellant should have been advised that she should be called.
31. Being both D's friend and close confidant and the appellant's sister put the witness in a very special position. She was present in the house, albeit not in the bedroom, before, during and after the alleged rape. Quite apart from other parts of her evidence which cast some doubt on D's credibility, her evidence crucially did not support D's account of being taken to the bedroom against her will, of crying, shouting and screaming whilst she was there and of an immediate complaint of rape. Instead she saw and heard no signs of resistance or distress and said that D did not become upset and complain of rape until after she discovered she was bleeding. Given that the jury were alive to the relevance of what the sister could say, we cannot be at all confident that if her evidence had been before them they would nevertheless have convicted. True it is that only D and the appellant knew and could say what had happened in the bedroom, but what the sister could have said would have cast considerable doubt on D's evidence and substantially supported the appellant's.
32. We think trial counsel's first reaction to the sister's evidence, that it was "vital", was correct. It may be that she was not more positive in the advice she gave to the appellant during the trial because the decision had to be taken "on the hoof", and the issue had become clouded by consideration of the photographs which did raise points of some complexity and because the appellant himself was reluctant to have them put to his sister. Finally we think that the summary of the potentially helpful aspects of the sister's evidence was an underestimate of their importance.
33. At all events, for the reasons we have given, we reluctantly think this appeal against conviction must be allowed.

MR SCOBIE: My Lord, it is just in relation to the costs. I have been asked by my instructing solicitor whether or not the representation order be made retrospective to 18th September?

LORD JUSTICE TUCKEY: We need to deal with more essential matters first obviously.

MR SCOBIE: I am so sorry. I have jumped many guns. I apologise.

LORD JUSTICE TUCKEY: Your submission is that the conviction having been quashed, formally the position would be that the appellant could be retried, but that as he has served the sentence imposed on him that would not be an appropriate course. I don't know what Miss Sullivan's view on that is.

MISS SULLIVAN: It is a matter for your Lordship's discretion. He has, of course, served his sentence. On the other hand, my Lord, it is a serious allegation.

(Pause)

LORD JUSTICE TUCKEY: Having served the sentence for an alleged offence, which is now over seven years on, we do not think it would be right for there to be a retrial in this case.

MR SCOBIE: I am sorry.

LORD JUSTICE TUCKEY: Representation order.

MR SCOBIE: Yes, I am sorry I did not deal with the other matter first. My Lord, I have been asked by my instructing solicitors that the court give consideration for that to be made retrospective to when the solicitors first became involved in this appeal on 18th September 1996. Your Lordships will be aware that this case has taken years, putting it bluntly, to come to court.

LORD JUSTICE TUCKEY: When was the matter first referred to the CCRC? The first grounds of appeal which were considered by this court in 1996 didn't get past first base and were not renewed. It is after that, is it, that your solicitors became involved?

MR SCOBIE: They became involved, as I understand it -- my instructing solicitor has been on this case from start to finish, so I may have to take further instructions -- but my understanding is that from 18th September is when they became involved in this case and in conjunction with the CCRC.

LORD JUSTICE TUCKEY: When did the CCRC become involved?

MR SCOBIE: Yes, he applied to the CCRC in the year 2000, but between that stage and that time there was preparation made in respect of this case.

LORD JUSTICE TUCKEY: For four years?

MR SCOBIE: It may be of assistance. I am rather talking, frankly, without the full information. (Pause). I have been asked -- my Lord, I am sorry it is all vague -- from the date of referral will have to do then. From the date of referral.

LORD JUSTICE TUCKEY: I think that sounds fair.

MR SCOBIE: Yes, my Lord, I agree.

LORD JUSTICE TUCKEY: The statement was there, the point was there and I think from the date of referral. You have got it from when?

MR SCOBIE: I am not entirely clear.

LORD JUSTICE TUCKEY: Anyway if it needs to be altered the representation order will be with effect from the date of referral to the Commission.

MR SCOBIE: Thank you very much indeed.

LORD JUSTICE TUCKEY: Is there anything else?

MR SCOBIE: My Lord, no.

LORD JUSTICE TUCKEY: Thank you both very much.