Cameron, R v [2001] EWCA Crim 562

EWCA-Crim
Cameron, R v
[2001] EWCA Crim 562 · 2001-03-13
[1]On 6 th September 1999 in the Central Criminal Court before Blofeld J and a jury the appellant was convicted of rape and indecent assault. On 16 th September he was sentenced to six years for rape and three years concurrent for indecent assault. Having been convicted of a sexual offence to which Part 1 of the Sexual Offences Act 1997 applies, he was required to comply with the notification provisions of s.2 of the Act for ten years. Leave to appeal was granted by the full court following refusal by the single judge.[2]The brief facts are that on 16 th March 1999, the complainant, who was fourteen years old and her boyfriend were sitting at the bus stop in Hackney when they were approached by the appellant and another young man (Joseph Lawson). The appellant started to chat up the complainant and then insisted that the complainant and her boyfriend accompany him to a nearby block of flats. They did so as he was older and larger than the boyfriend and they were frightened of him. Having got to the flats he told the complainant to go upstairs while her boyfriend remained where he was. He caused her to perform oral sex upon him. A little while later, he forced her to bend over and raped her. When she complained he was hurting her, he stopped before ejaculation, made her suck his penis once more and ejaculated into her mouth. He then released her and shortly afterwards she went to the police station. Sperm was found upon mouth swabs taken. Sperm on her trousers matched the appellant's DNA profile. However, no sperm was found on the vaginal swabs.[3]The evidence in chief of the complainant was given at trial in the form of a video of her interview in the police station. Defence counsel objected to the admission of the video recording, submitting that the rules had not been complied with, but, more substantially, that in the interests of justice the recording ought not to be admitted. He said that the interview showed she was able to give a fluent and uninhibited account of the incident without coaxing or prompting, she was not a shy reticent witness who might clam up or be intimidated by the courtroom atmosphere. She was able to speak without embarrassment or distress and had no real qualms about using sexual swear words to describe events. It was submitted that observation of her demeanour when first giving her account would be vitally important in assessing her truthfulness. The judge rejected the defence submissions[4]In her interview/evidence in chief, the complainant stated that she and her boyfriend had been sitting at the bus stop when the appellant and his friend had walked by. The appellant approached them and told her she was `nice' (i.e. pretty) and `buff' (which means the same). He asked for her phone number but she refused. He introduced himself as `Village King' (his street name) and said he was `a bad boy'. He asked if she had any nice friends whose number he could have. She said her friends had boyfriends and as they did not know him it was not possible. He gave his number on a piece of paper, then called her to the back of the bus queue away from her boyfriend and told her that he wanted her to phone him. She asked how that could be as she had a boyfriend and did not even know him, and he told her not to show the boyfriend the number. She agreed. The appellant's companion indicated it was time to go and the complainant said to the appellant that he should go as he was making his friend late. He asked if she was trying to be `rude' and whether she and her boyfriend were trying to be `bad'. Her boyfriend remained sitting and said nothing. The appellant told her to go with him unless she wanted him to do something at the bus stop so she and her boyfriend followed him to a nearby block of flats which he appeared to know. He asked why she was trying to be rude to him and whether she wanted him to show her `how the bad boys are'. She said she did not.[5]Once in the block of flats he told her to go upstairs, telling the boyfriend to remain downstairs. Her boyfriend was small and only seventeen whereas the appellant was a larger man who appeared to be about twenty-five to twenty-seven. Consequently the complainant told the boyfriend not to do anything for fear of what the appellant might do. She went upstairs and the appellant started undoing his trousers. She asked him what he was doing and he repeated `do you want me to show you how the bad boys are'. He told her to `shut up' and took out his penis. She told him to put it away as she was going downstairs. He said she was not going anywhere, grabbed her hair and forced his penis into her mouth which made her feel sick. She pushed him away but he told her not to push him or he would shoot her. She was scared. He then called her boyfriend upstairs to see what she was doing. Her boyfriend came upstairs, saw what was happening and left. She was scared. The appellant then told her he was going to have sex with her but she told him she was a virgin, which she said was untrue but she thought it might stop him. His response was `so what, it ain't going to hurt'. A man passed on his way upstairs and asked if she was alright. She was too scared to say anything; she felt sick, her mouth was dry and she could not speak and the appellant told the man he was doing nothing to her and that they were going downstairs.[6]When the man went, the appellant bent the complainant over and told her he was going to have sex with her and he put his penis in her vagina. She asked him to stop as it was hurting. He told her to put her knickers back on and suck his penis again. She said she did not want to, but he put it in her mouth and ejaculated into her mouth. She later spat the ejaculate onto the ground. When he had finished they went downstairs. He searched her pocket and asked her to give back his telephone number which she did. All she could remember were the numbers `09'. She was crying. Her boyfriend arrived and started comforting her and walked her to the bus stop. When a police officer asked her about her boyfriend, she told him (untruthfully) that she did not know his telephone number.[7]At trial admissions were made by the Crown to the following effect. Mr Martin Compton, a solicitor in Dalston, saw the complainant in his office at 2.35 pm on 19 th July 1999. She was with a person who gave his name as Robert Ibrahim, aged 21, who described himself as her cousin and took no active part in the discussion. She stated that she had met this boy of twenty-one who did not know her age. She had sucked him off and it upset her. She was with foster parents at 36, Reighton Road. She stated that others took it as rape, her boyfriend said it was rape, her foster parents encouraged her to say rape, and she said rape. She agreed it was intercourse but it was not true. She did not wish to speak to her key worker. She appeared nervous/worried and said she could not discuss it with her social worker. The police station was Stoke Newington and the defendant's name was Leon Cameron. On 30 th July 1999 a letter was written to Stoke Newington Police Station and a copy of this was sent to her key worker. On 2nd September 1999 a DC Allen who was unconnected with this case telephoned Martin Compton making enquiries about it as he had received this letter.[8]The complainant was cross-examined by counsel about the matter. She said she had been worried about coming to court, but it was no problem for her to tell the truth. She said she had spoken to a solicitor (Martin Compton) on 19 th July. It had been her own idea. She had told him she wished to drop the charges because she did not want the appellant to go to prison and she was scared of going to court. She said she told the solicitor what had really happened. She had not told him that sexual intercourse had not taken place. She had told him that there had been an act of oral sex. Later, she said she could not remember if she told him there had been no sexual intercourse. She said there was no reason to say that but she probably had told him that. She had not wanted to go to the police as she knew everything would come out in court. She did not know what she said in the solicitor's office. She had most probably said that the appellant did not `fuck' her. She had not wanted him to go to prison, so she had probably said that. She said she now understood that what was said was important and might send a man to prison. Her boyfriend had seen her performing oral sex upon the appellant and had `dumped' her the next day. He had cuddled her immediately afterwards but that had been a show for his friends, there having been three or four other youths with her and her boyfriend. She said she could have given the police her boyfriend's telephone number but she had known he would not go to the police station. She had now lost that number and could not remember it. At that point she refused to answer any more questions. She had by then been under cross-examination for some fifteen minutes.[9]The judge then intervened speaking to the complainant, using her first name, and saying he realised that the trial was very upsetting. The appellant responded `I am sorry .... but I do not want to see that man's face again and I do not want to talk to him'. `That man' was counsel for the defence. The judge then explained that counsel had a duty to perform representing the defence, during which the complainant made remarks such as `I know that and that is why he says them stupid things like I wanted to do it'. This led to the following exchange. Witness: He is going to say that to defend himself, innit. Judge: Try once again with this man and I will try ... Witness: No. No. No. No. No. I do not want to talk to that man again. Judge: You will not? Witness: I am not travelling with that man again, seriously, that man is an idiot. I am sorry and I hope he hears me. Judge: You see he has got to try and ask you one or two more questions. Witness: I do not care what he is trying to do. I am not talking to him.[10]With that, the judge asked the witness to wait, said he was going to switch off the video link, and had a discussion with defence counsel. The judge asked counsel to provide him with the material which he (counsel) wished to put to the witness. This was then done in some detail, into which it is not necessary to go for the purposes of this appeal. The judge indicated where he would be prepared to ask questions of witnesses and where he would not, on the ground for instance that the question proposed was mere comment or would unproductively inflame the witness. We can see no grounds for criticism of what the judge said or agreed and, indeed, no criticism has been made on this appeal beyond the submission that the procedure was inappropriate in any event. The judge then questioned the complainant, asking questions upon the topics which he had been asked to. Counsel for the appellant confirmed that he had covered those matters. The judge then informed prosecuting counsel that, in the interests of fairness, she would have to forego re-examination.[11]In the course of the judge's questioning, the complainant agreed that there had been three or four friends with her boyfriend at the bus stop and that, when she told the appellant that she could not phone him because she had a boyfriend she might well have been smiling. She denied that her boyfriend had interrupted and told the appellant that he was trying it on with his girlfriend and was a fool; neither had anything else happened that had made the boys with them laugh. She could not recall the appellant telling her boyfriend not to get `feisty' with him or he would make him look a fool. She said there was indeed a threat to shoot her and that the three had gone over to the flats, whereupon the appellant had invited her boyfriend to get feisty with him. She denied that the appellant had asked her what a man could get with her or that he had said that, because there was no bed, they could not have sex but instead asked her to give him oral sex. She said that having believed the threat to shoot which had been made, she had told the appellant that if he left her boyfriend alone he could have oral sex, but she had not given him oral sex voluntarily, he had made her do it. She had only agreed because he had threatened to shoot her boyfriend. While it was happening the appellant had called down to her boyfriend to have a look at her giving the appellant oral sex. When the man come up the stairs and asked if she was all right she had not said anything because she had been scared. She was certain that the appellant had raped her.[12]It had been her idea to go to the solicitor. She had done it because she did not want the appellant to be sent to prison when what he needed was help. She admitted meeting the appellant's friend Joseph Lawson, who went by the name of `Culture' later that evening. He had not realised who she was until she told him. She admitted that she had told him she had performed oral sex on the appellant but that the appellant had not had sex with her. She explained this by saying she did not want him to know all her business. It was not Lawson who had accompanied her to the solicitor. Finally, she had admitted that she used swear words, although she had said in interview that she did not.[13]So far as medical evidence was concerned, the medical examination revealed that the complainant had had some sexual experience, but not a great deal. It was impossible to say whether or not she had been raped. There was no semen on the vaginal swabs. However, there was semen on her clothes and on a patch of ground pointed out to the police by the complainant.[14]The police evidence as to the arrest of the appellant and his comments on arrest was as follows. He immediately said `that light skinned girl that sucked my dick. Is this what this is all about? I never raped her'. He said he and his friend had been walking when he had seen the complainant at the bus stop. He loved girls and had asked her if the boy with her was her boyfriend because he had done this in the past and sometimes the boy with the girl would not be the boyfriend. He gave her his number. As the complainant said the boy was her boyfriend, he asked if she had any nice friends for him. The boyfriend, who was sitting down with a few of his friends tried to get feisty with him, so he told him not to get feisty because he would slap him in front of his friends and make him look a fool. The boyfriend started shouting and the appellant told him to come over as he did not want to embarrass him in front of his friends. The complainant and boyfriend then followed him to the stairwell of a nearby block of flats, the four friends coming too. When they got to the flats the appellant invited the boyfriend to get feisty with him but he did not. He told him to stay where he was and told the complainant to come upstairs with him. He told her she was nice and asked if a man could get with her. He said he could not have sex with her there because there was no bed but he would like a `blowit'. She said that if the appellant let her boyfriend alone, he could have one and she gave him oral sex. When he was finished, he went about his business.[15]At the conclusion of the prosecution case, counsel for the appellant, Mr Johnson, made a submission of `no case' in relation to both counts, coupled with a submission that it would be an abuse of process for the case to continue in the light of the refusal of the complainant to answer questions in cross-examination and what he submitted was the unsatisfactory substituted procedure of questioning by the judge. He conceded that if one looked at all the evidence there was evidence sufficient to produce a prima facie case on both counts but submitted that the evidence called by the prosecution was so unsatisfactory that the case should not continue: see R -v- Galbraith 73 Cr App R 124 as elaborated in R -v- Shippey [1998] Crim LR 767. Mr Johnson submitted that the evidence was inconsistent, muddled, and came out in such a way that it was incredible. Counsel stressed that the complainant admitted that she had gone to solicitors after her original complaint and indicated that she did not want to continue with the prosecution, accepting that it was probable that she had told the solicitor that the appellant had not raped her. It was after that that the complainant had refused to answer any more of counsel's questions. Mr Johnson submitted that the fact that the judge had to take over the cross-examination of the complainant supported the submission that the evidence called by the prosecution was so unsatisfactory that justice could not be done if the case continued. He emphasised that in the course of such cross-examination the complainant had accepted that she had seen the appellant's friend, Lawson, and at one stage denied to him that the appellant had raped her. He also submitted that irreversible damage had been done by the refusal of the complainant to answer questions in cross-examination, because the questioning of the judge could not fairly be regarded as a substitute. Thus, to permit the trial to continue would be an abuse of process.[16]The judge refused the application. He stated that so far as the Galbraith submission was concerned, the court bore in mind the complainant's evidence on video, the visit to the solicitors office and her refusal to answer questions, as well as what she said when cross-examined by the court, but nevertheless concluded that it was a matter which should properly be left to the jury on the basis that the jury would be warned that counsel had not had the opportunity he would normally have had in cross-examination, and that the court took over because that was the only way forward, and that they must be very careful before deciding it was safe to act upon the evidence of the complainant. So far as the abuse of process application was concerned, he concluded that the answers which the complainant had given to the questions which he had put including further admissions were such that it did enable the jury to have a balanced picture of her evidence and that a fair trial could continue. Consequently he rejected the submission that, to permit it to do so, would be an abuse of process.[17]Following refusal of the submission, the appellant did not give evidence. The only evidence for the defence was in the form of a s.9 statement from a private investigator concerning unsuccessful efforts by the defence to trace the complainant's former boyfriend. The case for the defence in Mr Johnson's final speech was essentially that the complainant was streetwise, demonstrably untruthful and that there was no supporting evidence.[18]The grounds of appeal as argued before us have essentially been a repetition of the submissions made before the judge. As set out in the perfected grounds of appeal, they are as follows:
"1. The judge wrongly took over the defence cross-examination of the complainant when, at a relatively early stage in her cross-examination, she had refused to co-operate and answer further questions. 2. The judge, in so taking over the cross-examination, invited the defence to indicate an outline of matters which defence counsel would have explored but declined to put certain matters suggested by the defence and inevitably asked questions in a non-adversarial and non-searching manner, so that the complainant's evidence, which had been given in chief by way of recorded video, was never fully tested and explored as to truth fullness and accuracy. 3. The judge, having advised that the defence application to stay proceedings on the ground of abuse of process should be deferred until the end of the prosecution case, failed to accede to such application. 4. The judge erred in failing to concede to the submission of no case to answer at the end of the prosecution case. 5. The judge failed in his summing up adequately to direct the jury on the dangers of convicting on the basis of evidence which had not been adequately tested in cross-examination. 6. While giving the jury the special direction on the effect of s.35 of the Criminal Justice and Public Order Act 1994, given the exceptional factors in the case, the judge should have directed or advised the jury against drawing the adverse inference provided for in the section."
[19]As to Grounds 1 and 2 we reject any argument that the judge was wrong in principle to `take over' the complainant's cross-examination, as Mr Johnson puts it. Perhaps the first point to be made is that this was a case involving the alleged rape and indecent assault of a complainant who was only fourteen years old, however `streetwise' she may have appeared and however truculent she may have been as a witness when refusing to answer counsel's questions further. Bearing in mind the age of consent, and given that the complainant was the sole witness to the events (apart from the appellant), unless there was substantial reason to believe that her account of the incident and, in particular, her insistence that her sexual contact with the appellant was non-consensual was a fabrication, the overall interests of justice plainly required that the trial should run its course if that could be fairly achieved.[20]The judge's first duty, which in our view he amply fulfilled, was, by persuasion, to seek to get the witness to change her mind. While a delicate approach may be required with a frightened complainant in the case of a sexual complaint, where a judge is faced with a recalcitrant or defiant adult witness in a serious criminal case the task of persuasion will usually involve a sterner approach, including reference to the civic duty of the witness and, it may be, to the powers of the court to commit for contempt in the event of continued defiance. Certainly, it will be often be necessary and desirable to order a temporary adjournment for reflection and even the receipt of independent advice. However, in the case of this young witness, it has not been suggested that measures other than those taken by the judge would have been appropriate for the purpose of ascertaining whether she was prepared to continue with her evidence in response to cross-examination by defence counsel. Manifestly, she was not.[21]That being so, the judge was faced with the choice of whether(a) simply to discharge the jury, whereafter it would be a question for the Crown whether to seek to hold a re-trial in which it would inevitably be faced with an application for a stay of proceedings on the ground of abuse of process,(b) to advise the prosecution to consider its position with a view to offering no further evidence,(c) to adopt the course which he did, namely to consider with counsel the remaining matters upon which he wished to cross-examine the complainant and himself to put questions to her to elucidate such matters.[22]In the course of argument before the judge, he referred to having faced a similar problem before and having dealt with it in a similar manner. However, the joint industry of counsel before us has failed to reveal any reported decision dealing directly with the problem which arose in this case. We approach the matter on the basis that it is the overall duty of the judge to ensure that a fair trial takes place before him. It goes without saying that such a trial is normally to be conducted in the traditional manner adopted under our adversarial system, namely the examination and cross-examination of witnesses by the advocates for the prosecution and defence or, in default of representation, by the defendant himself, save insofar as alternative procedures are provided by statute. Nonetheless, we do not think that necessarily precludes a judge from dealing with a matter of this kind arising ex improviso within the spirit, rather than by the letter, of the system. The solution adopted by the judge in this case would not ordinarily be appropriate to the situation of an adult witness who, without good excuse, refuses to answer questions put in cross-examination, though we do not necessarily, for example, exclude such a procedure in the case of a witness who is labouring under a mental handicap or a frightened or traumatised witness in the case of a sexual complaint.[23]Certainly, in the case of a child complainant in the trial of a sexual complaint, we do not consider that it should be regarded as beyond the judge's discretionary powers to adopt the procedure followed in this case, provided that he is satisfied that fairness can thereby be preserved, and provided that, once the procedure has been followed, he takes it into account in any subsequent ruling, and provided that in relation to the directions which he gives to the jury, he informs them of the unusual and less satisfactory nature of the procedure as a substitute for the traditional right of the defendant or his advocate to cross-examine prosecution witnesses.[24]It is clear to us from the observations which the judge made when later ruling upon the Galbraith and abuse of process applications, that the judge dealt with the matter correctly. In making his ruling, he said:
"She answered to those matters. Some of them were favourable to his case; some were unfavourable. The matter that was particular favourable to his case ..... was that she accepted that she had seen the man who was with the defendant on the evening when the sexual matters were alleged to have taken place and she did, at one stage, deny to him that he had - that this defendant had never raped her. She gave an explanation for that, however, in answering her questions. She also accepted at the beginning of the whole affair accepting the defendant's account the conversations as to how matters led up to the sexual encounter on the stairs of a block of flats. I have to bear in mind that parliament has seen fit to arrange a special regime for children and young persons when giving evidence; namely, by using video link. The courts have now quite considerable experience of these matters. It is not easy to cross-examine children and young persons in these circumstances. Inevitably, cross-examination is less searching than it can be if the witness is grown up. The question I have to ask myself is whether, in fact, by my putting the questions (rather than Mr Johnson putting the questions) damage has been done so that a fair trial can no longer be held. If that were, in my view, the case or might be the case, then I should stop this case on that basis because it would be both abuse of the process of the court or, if it were not that, it would be a Galbraith case. I think that the proper approach is to consider the abuse of process first and, if I was with Mr Johnson on the abuse of process, it would not be necessary to consider the Galbraith aspect of this case. However, in the circumstances, I have come to the conclusion that the answers that she gave when I put the matter that Mr Johnson wished me to put to her are such that it does enable the jury to have a balanced picture of her evidence and a fair trial can continue. Consequently, I reject the submission that this was an abuse of process."

The judge's ruling on the Galbraith submission was as set out at paragraph 16 above.

[26]So far as Ground 2 is concerned, Mr Johnson has not argued before us that the matters which the judge declined to put were other than appropriately omitted. He has, however, submitted, that, given the admissions which the judge obtained during his questioning which Mr Johnson has described as `non-adversarial and non-searching', greater concessions would inevitably have been secured if the probing methods of an adversarial cross-examination had been adopted. We do not regard that proposition as self-evident. Nor has Mr Johnson persuaded us that there was any specific matter not covered by the judge in respect of which he would have been likely to have achieved a better result. This is to some extent an artificial argument because, ex hypothesi , the witness would not have answered any of the questions if they had been put to her by Mr Johnson. Thus, it seems to us that the only significant matter of which it can be complained that the appellant has been deprived was the opportunity of cross-examination by his own representative in the face of the complainant's refusal to answer questions put by him. In that respect, we do not consider that any prejudice in fact resulted.[27]As to Ground 3, we have already dealt with the burden of the complaint that the abuse of process application did not succeed. It seems to us that the only basis upon which the abuse of process argument could be put was the basis of an assumed inherent unfairness in allowing the trial to proceed on the basis of questioning rather than a completed cross-examination by Mr Johnson. We have already indicated that, in our view, the judge acted within his powers in taking the course which he did and we see no reason to suppose that, in the event, there was any unfairness involved.[28]As to Ground 4, the submission of no case to answer was essentially one for the judge who had had the advantage of seeing and assessing the complainant and the manner in which she gave her evidence. It was classically a case where the strength or weakness of the prosecution evidence depended on the view to be taken of the witnesses' reliability. So far as the charge of indecent assault was concerned, the appellant had himself admitted in evidence that the claimant had only consented to oral sex provided that he would leave her boyfriend alone. He, of course, denied the rape and the essential matter of doubt upon which the reliability of the complainant's evidence fell to be assessed was her assertion that rape had taken place. She had offered explanations as to why she had later indicated to others that it had not taken place, and the judge was fully entitled to take the view that the assessment of her evidence and credibility as a whole should properly be left for the jury to decide.[29]So far as Ground 5 is concerned, in summing up to the jury, the judge reminded them of the manner and rudeness of the complainant's refusal to answer any more questions put to her by defence counsel and briefly told them of the discussion which had occurred in their absence. He went on:
"Then we all came back and then I, in fact, asked her questions. However, of course, I did not ask them in the order or the way Mr Johnson's would have put it. I did not press her in the way he might have put it. Therefore, although as he was kind enough to say when I had finished, that I had put all the questions he wanted, that is the sort of thing that counsel said out of politeness to a judge and do not be deceived by that because I am sure that he would have put it more forcefully. Thus, that is a criticism of the way she was cross-examined and you must take that into account because, in the circumstances of this case, it is quite a difficult exercise for you. He said that he wanted me .... to go through what actually was his case and I went through what happened. She actually agreed with a lot of it ..."
[30]The judge then enumerated the matters upon which she had agreed or made admissions in a passage which covers several pages of the transcript of judgment.[31]While it is correct that the judge did not at that point expressly direct the jury on the dangers of convicting on the basis of evidence which had not been tested in cross-examination by defence counsel himself, he had earlier given a vigorous direction upon the need for particular care before deciding to act upon the complainant's evidence and, in this connection, had enumerated to them the inconsistencies in her evidence, in particular emphasising to them her visit to the solicitor and the content of the prosecution admissions. In all the circumstances, we have no doubt that the jury were fully aware, upon retiring to consider their verdict, of the necessity only to convict after assessing her evidence with the utmost care and bearing in mind the manner of her cross-examination..[32]Finally, in relation to Ground 6, leaving aside the question of the truncated cross-examination by counsel, there could be no possible basis for attacking the decision of the judge to give to the jury the special direction on the effect of section 35 of the 1994 Act in relation to the appellant's failure to give evidence. Nonetheless, it has been Mr Johnson's submission that, in the interests of `equality of arms', because the judge permitted the trial to proceed without the complainant having to be cross-examined by counsel upon the details of her case, he should have instructed the jury to draw no adverse inference from the failure of the appellant to give evidence and thereby himself have to be cross-examined. We do not agree. Given that the trial was permitted to proceed and that there was, as a result, a case to go before the jury, the decision of the appellant fell to be taken in that light, just as in any other case where a Galbraith submission fails. The strength or weakness of the prosecution case is not in itself a ground for requiring a judge to advise or direct the jury that they ought not to draw any adverse inference from the failure of the defendant not to give evidence: R -v- Byrne , unreported, November 21, 1995 CA (95/4151/W4). In the event, the judge in this case gave a direction which fully reflected the elements of the model direction set out in the Crown Court Bench Book and we do not think that any criticism attaches to that aspect of his summing up.[33]Accordingly, we do not find that any of the grounds of appeal relied on has been established. We are satisfied as to the safety of the conviction and the appeal is therefore dismissed.

Cited in 1 later judgment