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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 >> Leppard, R v [2017] EWCA Crim 369 (24 February 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/369.html Cite as: [2017] EWCA Crim 369

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		24th February 2017

Friday 24^th February 2017

LORD JUSTICE SIMON: I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Accordingly, no matter may be reported during the complainant's lifetime if publication of it is likely to lead members of the public to identify her as the victim of the offence. This prohibition will continue unless and until it is waived or varied in accordance with section 3 of the Act.
2. On 13^th March 2015, the complainant "K" was celebrating her 18^th birthday with a group of friends and acquaintances of a similar age to herself. The group included the applicant. At around midnight they went to the applicant's home. By this stage, K had consumed a lot of alcohol and was very drunk. When she was encouraged by the group to drink more wine at the applicant's house, she did so, but immediately vomited.
3. She was subsequently seen to be kissing the applicant in the kitchen. She and the applicant then went upstairs to the applicant's bedroom.
4. K's evidence was that, because of her intoxication, she had no recollection at the applicant's house. She did, however, say that she was menstruating at the time, and that she does not have sex during her period. She also said that she did not want to have sex with the applicant that night.
5. The prosecution were able to adduce evidence as to what happened in the bedroom in the form of video clips recorded on the mobile phone of one of K's female friends who was present. The first clip (clip 1) was recorded when that friend and others followed the applicant and K to the bedroom, expecting to find them kissing. What they in fact found was the applicant having sexual intercourse with K. K was lying on the bed on her back, with the applicant between her legs. At the very start of the clip, one of K's hands could be seen to move briefly across the applicant's back in a stroking motion. No other movement could be seen from her. A young man who had also entered the room then jumped on top of the applicant's back and, in a joking way, pretended to thrust with him, and a second young man joined in. When they stopped and moved aside, K's face could briefly be seen. It was the prosecution case that at that point she was clearly unconscious or "out of it".
6. The second clip (clip 2) was recorded about five or ten minutes later. It showed K kneeling on the bed, bent forwards with her face on the bed and her bottom raised, and the applicant apparently penetrating her from behind. One of the young men seen in the first clip was also on the bed. K did not appear to be moving or responding in any way. The recording stopped briefly. When it resumed, it showed the applicant moving away from K. It is accepted that the audio part of the recording enabled one to hear the applicant say: "No, wait. She's asleep, innit. I'm not fucking a girl that's asleep. That's technically rape." The young man who was on the bed slapped K's bottom hard a number of times, but elicited no response whatsoever. At the end of clip 2, K could be seen to be lying face down on the bed, motionless. She was apparently asleep or had passed out.
7. In her admirably succinct oral submissions to the court today, Miss Farrelly emphasises certain features of those two clips: first, that both clips were extremely short in duration; secondly, that they were close in time, with a maximum of ten minutes between them; and thirdly, that, on any view, the position of the complainant, K, at the start of the second clip shows that she must have moved since the end of clip 1.
8. The applicant was charged with two offences of rape. Count 1 was based on clip 1; count 2 on clip 2. The prosecution case in relation to both sexual acts was that K did not consent and that she was so intoxicated that she was unable to consent to any sexual activity. The applicant's case was that the sexual activity shown in both clips was consensual; or, alternatively, that he reasonably believed that K was consenting to it. His evidence was that he had no reason to think that K was asleep or was not consenting, until the point shown at the end of clip 2 when it appeared that she was asleep and he thereupon stopped all sexual activity.
9. At the first trial, in March 2016, a jury returned a not guilty verdict on count 1. They could not agree on a verdict on count 2 and were discharged. That count was retried in June 2016 in the Crown Court at Maidstone before His Honour Judge Statman and a jury. Although the jury was concerned with only a single count, we shall continue, for convenience, to refer to it as "count 2".
10. The prosecution adduced both the video clips in evidence. In opening the case to the jury, prosecution counsel explained that clip 1 showed that K "was lifeless, certainly by the end", which must have been obvious to the applicant. Counsel said: "It is her obvious state at the end of the first clip which is important, because it is what follows just moments later which forms the subject matter of this count of rape".
11. On behalf of the applicant, Miss Farrelly applied to the trial judge to adduce evidence of the fact of the applicant's acquittal on count 1 at his earlier trial. She submitted then, as she submits now, that the acquittal was relevant to two issues: first, the credibility of K; and secondly, whether the applicant reasonably believed that K was consenting to the sexual activity shown in clip 2.
12. The judge was referred, as this court has been, to a passage in the then current edition of Archbold at paragraph 4-400, in which a number of authorities are conveniently summarised, and to R v Colman and Terry [2005] QB 996. He refused the application on the following grounds: first, the route by which the first jury had reached their not guilty verdict on count 1 was a matter of speculation and did not necessarily mean that that jury had rejected K's evidence; secondly, the previous acquittal was irrelevant to the issues which the jury had to consider, which related solely to the sexual activity shown in clip 2; thirdly, if evidence of the previous acquittal were adduced, there was a danger that it would deflect the jury's attention from the issues which they should have been considering and would give rise to speculation about why the previous jury reached that verdict; and lastly, there was no unfairness to the applicant in excluding the fact of the acquittal because it was irrelevant.
13. The trial proceeded. When it came to the summing-up, the judge said this:

"The Crown relies upon the contents of the video clips you have seen. The Crown asserts that the first video clip shows the state the complainant was in before the allegation in the count on this indictment took place. I emphasise to you the Crown places this clip before you as background evidence, showing the lead-up to that which occurred and which constitutes the subject matter of the count on the indictment. The Crown asserts that, on the evidence before you, the second video clip takes place between five and ten minutes after the first and at the time of the second clip when intercourse is taking place, the complainant is asleep and thus could not consent.

The defence asserts that all sexual activity which took place in the [applicant's] bedroom was consensual and that the complainant was awake."

14. The applicant was convicted. At a later date, he was sentenced to eight years' detention in a young offender institution. His application for leave to appeal against conviction was refused by the single judge. He now renews that application to the full court.
15. Miss Farrelly accepts that the applicant's acquittal on count 1 was not conclusive evidence of his innocence. But she reiterates her submission that the fact of that acquittal was potentially relevant to two issues in respect of count 2. As to K's credibility, she submits that it is a necessary inference that the first jury must have found, contrary to K's evidence, that she was not asleep or unconscious during clip 1. Secondly, as to the applicant's reasonable belief in consent, Miss Farrelly points out that the prosecution were not prepared to make a concession that the applicant was not raping K in clip 1. She submits that the prosecution were, in effect, trying to have their cake and eat it by relying on clip 1 as showing that, by the end of that clip, K could not have been consenting and the applicant must have known that she was not consenting. That, she suggests, was an example of the prosecution, in reality, seeking to go behind the first jury's verdict on count 1. She submits that it was therefore only fair for the jury to know of the fact of the acquittal.
16. Realistically, Miss Farrelly accepts that the brief, stroking movement of K's hand at the start of clip 1 may have carried weight with the first jury in their verdict on count 1. Equally realistically, she accepts that it was not possible to raise any objection to the playing of clip 1 at the retrial. But she argues that fairness demanded that the jury should have "the full picture", namely, a picture which included the fact of the acquittal.
17. In our judgment, the authorities to which we have been referred establish the following principles:

(1) The general rule is that an earlier acquittal is irrelevant and inadmissible, because it is no more than evidence of the opinion of the jury at the earlier trial: see Hui Chi-Ming v R [1992] 1 AC 34.

(2) There is an exception to that general rule, where the credibility of a prosecution witness is in issue and the circumstances of the earlier acquittal give rise to a clear inference that the jury at the previous trial must have disbelieved the evidence of that witness: see, for example, R v Hay (1983) 77 Cr App R 70.

(3) In considering whether that exception applies, it is necessary to keep in mind that the previous acquittal is not conclusive evidence of the defendant's innocence of the offence to which it relates. Nor does it mean that all relevant issues have been resolved in favour of the defendant: see Colman and Terry at [43].

(4) Where prosecution evidence is otherwise admissible at a later trial in proof of a defendant's guilt of an offence charged in that trial, then provided that the defendant is not exposed to double jeopardy, the prosecution is not prevented from adducing the evidence merely because it may lead to the conclusion that the defendant was, in fact, guilty of a separate crime of which he was previously acquitted: see R v Z [2000] 2 AC 483.

18. In her submissions applying those principles to the present case, Miss Farrelly argues that there were three reasons why the learned judge should have treated this case as an exception to the general rule. First, she argues that the acquittal on count 1 was relevant to the credibility of K. Secondly, she argues that clip 1 was an important piece of evidence common to both trials and that the jury should have had the full picture about it. Thirdly, she complains that in the circumstances of this case, given that the prosecution made much of certain features of clip 1, fairness required the jury to know of the acquittal.
19. In our judgment, applying the principles which we have summarised, the judge was entitled to refuse to admit the evidence of the applicant's earlier acquittal. In the circumstances of this case, the first jury's route to their verdict of acquittal on count 1 was a matter of speculation. It could not be said that it gave rise to any necessary inference as to that jury's finding in relation to either of the two issues identified by Miss Farrelly. The only necessary inference, as it seems to us, is one which militates against Miss Farrelly's argument, namely that, whatever route the first jury took to their verdict on count 1, they did not agree that the same route could lead them to a verdict on count 2. The general exclusionary rule, therefore, applied to make evidence of the earlier acquittal irrelevant and inadmissible. Miss Farrelly, in our judgment, was not able to bring the case within the limited category of exception.
20. The answer, in law, to her overarching submission about unfairness is that the jury did have the full picture before them: that is to say, they had the full, legally-relevant picture before them. It was, therefore, not unfair for the prosecution to adduce clip 1 to show K's condition a very short time before the sexual activity shown in clip 2, even if the jury might have formed a view about clip 1 which was inconsistent with the first jury's verdict on count 1.
21. As prosecuting counsel had done in his opening, the judge in his summing up took care to ensure that the jury's focus was properly directed to the sexual activity shown in clip 2, with clip 1 serving only as background evidence showing the lead up to the events on which the jury had to concentrate.
22. For those reasons, we reach the same conclusion as did the single judge, namely that it is not arguable that evidence of the previous acquittal was relevant and admissible. It is, therefore, not arguable that the judge was wrong to exclude it.
23. This renewed application, attractively made thought it was, is accordingly refused.