Duncan, R. v [2003] EWCA Crim 3184

Case No 2002/06438/B4[2003] EWCA Crim 3184
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MIDDLESEX GUILDHALL CROWN COURT
(LAWRENCE HHJ)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 14 November 2003
Before
LORD JUSTICE POTTERMR JUSTICE CRESSWELLMR JUSTICE DAVIS
Between
REGINARespondentSTACEY JEROME DUNCANAppellant
Miss Isabelle Gillard appeared for AppellantMiss Johannah Cutts appeared for RespondentHearing Hearing date : 4 November 2003
JUDGMENT
[1]By verdicts delivered variously on the 11th September 2002 and 16th September 2002, a jury, after a trial at the Middlesex (Guildhall) Crown Court, unanimously convicted the appellant, Stacey Duncan, on two counts of rape and (by a majority) on one count of inflicting grievous bodily harm. The jury acquitted the appellant on a count of false imprisonment. He was sentenced by the trial judge (HHJ Lawrence) to a term of imprisonment totalling 9 years. He now appeals against conviction by leave of the single judge. A previous application for leave to appeal against sentence was refused.[2]The complainant was a 28 year old student from Germany who had been living in the UK for some time. In January 2002 she met the appellant at a night club in Brixton, where he was working as a doorman; and she gave him her telephone number. Thereafter they spoke on a number of occasions on the telephone and they had some contact; for example, going for a walk in the park and going to meet some of his friends. There was evidence that the complainant told the appellant that she had just come out of a previous relationship and was not looking to enter another one.[3]On the evening of the 2nd March 2002 the appellant collected the complainant from her home address in London, by arrangement, at some time after 10pm, and they went together by car to a nightclub in the West End. The complainant had some drinks while at the club – how many was in dispute, but she accepted at trial that she was at least tipsy (the appellant’s case was that she was very drunk). While at the club the complainant danced with the appellant and also a number of other people, including a friend of the appellant called Max. Eventually the appellant offered to take her back home in his car. According to her, he was angry with her for behaving provocatively and for bringing him into disrespect so far as his friends were concerned. They left the club at about 03.30 and went to the appellant’s car.[4]According to the complainant, the appellant behaved violently towards her. Although initially he started to take her back to her own flat in South-East London, in the event he drove on to his own flat in North London. She said that, once they were in the car, he had locked the doors of the car from inside and beat her and attempted to strangle her: when they got to her flat he forcibly restrained her and forced her to go with him to his own flat against her will. It was these matters which gave rise to the first count, of kidnapping.[5]When inside the appellant’s flat, the appellant, according to the complainant, continued to behave violently. According to her he forced her to remove her dress, pushed his fingers into her vagina and then, while she was on a sofa in the sitting room, forced his penis into her mouth and then into her vagina, against her will. It was this that gave rise to the second count (of rape). After that, the complainant’s evidence was to the effect that the appellant repositioned a mirror so that he could see them both in it, forced her to bend over the sofa and then forcibly had anal sex with her: this gave rise to the third count (of rape). She said it was extremely painful. According to her, the appellant said at that stage “you have done this before”. On each occasion of intercourse the appellant wore a condom. At one stage, according to her, his mobile telephone rang but he did not answer it. Afterwards, he told her to wash herself and, when she was in the bathroom, offered her a towel. She said that he behaved in effect as if nothing untoward had happened. Her evidence was that, because of her fear, she throughout said and did nothing by way of resistance. She also gave evidence that, at the end, she had heard him say to someone else (she thought on a telephone) words to the effect that they were finished and were about to leave.[6]Whilst in the bathroom, the complainant, fearful for her safety, tried to escape by climbing through the bathroom window. In the event, she lost her grip on the drainpipe while climbing out and fell into a basement two stories below and injured herself (it was this matter which gave rise to the fourth count, inflicting grievous bodily harm). It was common ground that the appellant, and a flatmate of his called Jonny Hoyt, then took her in the appellant’s car to a local hospital. When there, she made complaint, to nurses and then police officers, that she had been raped. The appellant remained with the complainant at the hospital for some time although he had left by the time the police arrived. He did not attempt to contact her thereafter.[7]The case of the appellant at trial (which in essence reflected what he had said in interview) was that there was no element of coercion or kidnap. He said that he and the complainant had bickered in the car on leaving the club but then she calmed down and became reasonably affectionate towards him. The complainant went on to the appellant’s flat voluntarily and the sexual activity (including the acts of vaginal and anal sexual intercourse) were consensual. Nothing done by the appellant led to the complainant’s fall from the window. The defence also drew attention to various discrepancies in the complainant’s accounts of events, including what she told nurses and police at the hospital. The defence had, in addition, adduced evidence to the effect that the complainant was (so it was said) neurotic, changeable and volatile and had been seeing a therapist.[8]Medical evidence was given at trial. The complainant had sustained a fractured arm and there were other scratches, lacerations or marks consistent with injuries caused by manual pressure or a fall or both. The doctors accepted that the main injuries could be explained by glancing blows as she fell. A small laceration to the anus, which would have caused considerable discomfort, was noted, as was some generalised redness (but no injury) around the complainant’s genitalia. No visible injury to the neck was noted, and there was no facial petechial haemorrhage, which would have been typical where there had been an attempt at recent strangulation.[9]The appellant gave evidence at the trial. In addition friends of his (including Max and another friend called Titus who had been at the nightclub) gave evidence about the complainant’s behaviour, said to have been flirtatious, in the nightclub. Johnny Hoyt made a statement to the police on 8 March 2002, but the prosecution did not seek to rely on his evidence and elected to treat his statement as unused material. The appellant’s former solicitors themselves obtained a further written statement from Mr Hoyt on 21 June 2002 with a view to calling him as a defence witness.[10]The trial was estimated to last 8-10 days and was fixed to start on 2 September 2002. In the event, for various administrative reasons, a jury was not sworn until 4 September 2002. A few days into the trial the Judge informed counsel that he would not be available on the Thursday or Friday of the second week (12 and 13 September 2002). The defence had been planning to call Jonny Hoyt as a witness, it being estimated that he would be required to give evidence on around the 9 September 2002. It became known to the defence solicitors prior to trial that Jonny Hoyt had, some weeks before, apparently gone to Aiya Napa in Cyprus, having originally fixed his return from Cyprus for 8 September 2002: in the meantime, in spite of attempts made, the appellant’s solicitors were not able to make direct contact with Mr Hoyt: however, they had no reason, it is said, to think that he would not attend the trial on 9 September.[11]At trial, the appellant stated in evidence that, after he had returned to his flat with the complainant, and while they were engaged in consensual sexual activity, he heard Johnny Hoyt return to the flat: according to the appellant, he heard Hoyt come in about half an hour after the appellant and the complainant had been there. He said that, after the sexual activity was over, he then called Jonny Hoyt on his mobile telephone (Hoyt being in the adjoining bedroom) and then joined him in that bedroom while the complainant went to the bathroom. The appellant and Hoyt spoke for a few minutes, and then separately went to see where the complainant was – eventually seeing her lying unconscious in the basement area. In his two statements, Jonny Hoyt’s version of events was to broadly similar effect. He said that he let himself into the flat, after coming home from work as a doorman, at some time between 06.00 and 06.30. He said that he put his head round the living room door: that he had only had a “quick glance” (in his second statement, he said that it was for a “split second”) and could see the appellant having sex with a girl. He heard no noises, and went to the adjoining bedroom to be out of the way, shutting the door. He was subsequently, while in the bedroom, contacted by the appellant on his mobile telephone. The appellant then came into the bedroom; he seemed pleased with himself. Mr Hoyt then described events after that, including taking the complainant to hospital with the appellant. In his second statement (the one dated 21 June 2002) he said “ I definitely remember that while on route to the hospital the girl said to me that she must have fallen out of the window”: and that he was “near positive” that she had repeated this at the hospital. This was in contrast with his first statement (made to the police on 8 March 2002, five days after the events in question) in which he did not state that the girl had made any such a statement, either in the car or at the hospital: on the contrary, he had stated that, after they had reached the hospital, the girl was saying she could not remember what had happened and that he (Hoyt) remembered saying to her that she must have fallen out of the window. The last paragraph of Mr Hoyt’s second statement (which comprised some 5 pages) read as follows:
“Towards the end of the following week Stacey [the appellant] said he thought the girl had accused him of raping her. He was very concerned and worried about this allegation. This whole experience has been really shocking and numbing for me. All I can remember was seeing them having, what seemed to be sex, on the sofa in the living room and nothing seemed untoward. The next minute, there’s a girl lying outside on the ground and we had to rush her to hospital because we thought she might die. Since this whole incident I have been very concerned for this woman’s health but I have also been very concerned for Stacey’s mental and physical health. He’s a good friend of mine and he has been accused of a very, very serious allegation and from my knowledge of Stacey I cannot believe him capable of this type of allegation (sic).”
[12]In the event, Jonny Hoyt did not attend to give evidence at the trial. There was no application for an adjournment to secure his attendance. Instead, Miss Gillard, who appeared for the appellant both at trial and on this appeal, applied for his two statements to be read to the jury, pursuant to s.23(2) (b) of the Criminal Justice Act 1988. The prosecution raised no objection to this, and the Judge acceded to the application. The statements of Mr Hoyt were then read to the jury as evidence adduced on behalf of the appellant.[13]In support of the present appeal, Miss Gillard advances a number of points in support of her overall submission that the appellant’s conviction was unsafe. These can be summarised as follows.13.1 First, she says that Mr Hoyt is now available to give evidence (he having returned to the UK on 12 September 2002) and asks for leave, pursuant to s.23 of the Criminal Appeal Act 1968, to adduce orally the evidence contained in his two statements.13.2 Second, she submits that, in any event, the Judge wrongly made disparaging comments in his summing-up about the weight to be given to the evidence of Mr Hoyt and (in her phrase) “utterly defused its import”.13.3 Third, she submits that the judge made unfair comments about the circumstances in which character evidence had been adduced on behalf of the appellant.13.4 Fourth, she submits that the Judge’s summing-up at various stages included inappropriate comments disparaging the defence; over-emphasised the prosecution case to the disadvantage of the defence case; and failed properly to analyse the defence case, and the evidence relating to it, simply reciting the evidence without appropriate comment by way of guidance.13.5 Fifth, she submits that (in what had already become a trial with time pressures on it, through no fault of the defence) the Judge gave a majority verdict direction to the jury with inappropriate speed on 11 September 2002 and thereby placed undue pressure on the jury. Moreover, the timetable was such that (in the event) there was a four-day gap before the outstanding verdicts were returned on 16th September 2002.[14]Turning to Miss Gillard’s application to admit Mr Hoyt’s evidence as fresh evidence, this is based on s.23(1) (c) of the Criminal Appeal Act 1968. That provides in the relevant respects as follows:
“(1) For the purposes of this part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice........... (c) receive any evidence which was not adduced in the proceedings from which the appeal lies.”
Sub-section (2) then sets out the four matters to which the Court of Appeal is in particular to have regard in considering whether to receive any evidence.[15]As it seems to us, the jurisdictional basis for Miss Gillard’s application may be queried. She expressly accepted that the evidence from Mr Hoyt which she now wishes to adduce was to precisely the like effect as that contained in his previous two statements. But the evidence comprised in these two statements was adduced in the proceedings from which the appeal lies: since the statements were (by leave of the Judge) read to the jury as part of the defence case. Miss Gillard suggested, nevertheless, that the proposed evidence falls within the ambit of s.23 (1) (c), being oral testimony from Mr Hoyt as distinct from written statements, albeit the content would be the same. Miss Gillard was unable to produce any authority to support the validity of this distinction for the purposes of s.23(1) in relation to any analogous situation. However, we say no more about that potential difficulty, nor about her suggestion that this Court might, in the alternative, exercise its powers to admit the evidence under s.23(1)(b), because we have reached the conclusion that her application to adduce fresh evidence should in any event be rejected. Our reasons are as follows.[16]First, the explanation for Mr Hoyt’s failure to attend is very unsatisfactory. It is clear that the solicitors had been making attempts to contact him in the period prior to trial (and had been unsuccessful in doing so). However, the evidence now before us indicates that Mr Hoyt was aware of the date that he needed to attend for trial. His explanation that he was in Cyprus and unable to contact anyone from there because he had no more credit left on his mobile telephone lies ill with his assertion in his witness statement that he had nevertheless contacted friends in the UK to advance him funds to enable him to return to the UK. Moreover his assertion of lack of funds while in Cyprus, and that his passport was withheld in respect of a debt owed to the hotel where he stayed, (thus preventing him from returning to the UK), is accompanied by no chapter and verse or supporting evidence in the witness statement explaining his absence. He does not exhibit the hotel bills in Cyprus which he says he was unable to pay nor any financial or bank statements. Furthermore, the witness statement of the appellant’s solicitor filed in support of the application for leave to adduce fresh evidence in terms states that Mr Hoyt’s passport would be exhibited; however this has not been done and Miss Gillard was unable to produce it to us at the hearing of the appeal.[17]Second, it must be borne in mind that the defence did not apply at the time for an adjournment to bring Mr Hoyt to court. Instead they applied – successfully - to have the statements read. Mr Hoyt’s evidence was thus before the jury. There is force in Miss Cutts’ submission on behalf of the respondent that the court should be wary of granting an application of the present kind in such circumstances; otherwise there is an obvious risk that the trial process is open to manipulation by having statements read at trial (on which the maker cannot be cross-examined) and then, if a conviction results, a “fall-back” strategy of seeking leave to adduce the evidence of that witness orally on appeal. In this case, it is to be noted that it was not necessarily disadvantageous to the defence that Mr Hoyt did not give oral evidence on which he could be cross-examined. Although broadly similar, there were a number of discrepancies between his first and second statements. As already noted, there was a significant discrepancy as to whether it was the complainant en route to the hospital, or Mr Hoyt at the hospital, who said that she must have fallen from the window. There was also a significant difference in detail between the two statements as to the various mobile telephone calls. The case of the Crown at trial (consistent with the mobile telephone records and the complainant’s own evidence) was that the appellant had telephoned Mr Hoyt initially to tell him to keep away from the flat while the appellant was there with the girl, and later (after Mr Hoyt had first unsuccessfully rung him) had telephoned him again to say that it was by then all right for him to return. Cross-examination of Mr Hoyt might well have undermined his evidence that he was in the flat at the time, thus undermining the appellant’s own evidence that Mr Hoyt had returned while he was with the complainant on the sofa.[18]Third, it is, in any event, difficult to see how the oral evidence of Mr Hoyt would materially have advanced the defendant’s case. Mr Hoyt said in his statements said that he only had a “quick glance” at what was going on in the sitting room; and it was the complainant’s own evidence (as well, of course, as the appellant’s) that during intercourse she was not struggling or shouting. As a so-called “eye-witness”, Mr Hoyt in reality had little or nothing to contribute.[19]Taking these matters overall, we indicated to Miss Gillard in the course of the hearing our decision that, in our discretion, we would not admit the oral evidence of Mr Hoyt.[20]Miss Gillard candidly told us that her principal reason for seeking to adduce the oral evidence of Mr Hoyt was that (as she asserted) his statements were not dealt with properly by the Judge in the course of the summing-up. However, as she acknowledged, that was a point more properly advanced as a discrete ground of appeal and to that we now turn.[21]Both at the time Mr Hoyt’s statements were read and in the summing-up, the judge gave what might be called a conventional direction as to their status. He rightly pointed out in the summing-up that Mr Hoyt could not be cross-examined on the statements. He went on to say (at p34B of the transcript) that:
“.... it is, in those circumstances, a matter for you what weight you wish to put on this evidence, and you may feel that it is perhaps evidence that is not worth a very great deal of weight.”
He made a remark to similar effect at a later stage in the summing-up when considering the substance of Hoyt’s evidence.[22]Miss Gillard submits that was unduly dismissive of such evidence, and the Judge should not have made such comment. Further, she criticizes the Judge for not summarising the evidence of Mr Hoyt (as set out in the statements) in greater detail; for not explaining how it could be taken to support the defence case (for example, to support the defence suggestion that it was unlikely that the appellant would rape a girl when Mr Hoyt was present in the flat); and generally in failing to give the jury more guidance as to how to deal with this evidence.[23]In our judgment, there is no real substance in this ground. The Judge, at the outset of his summing-up, made clear that evidential matters were for the jury and that any view of the Judge as to the facts was irrelevant. Further, Miss Gillard had, in her lengthy closing speech, dwelt at some length on Mr Hoyt’s two statements and on their asserted significance for the defence, reading to the jury verbatim at least the closing passage of his second statement (which we have already set out). Further, the relative brevity of the judge in dealing with the evidence of Mr Hoyt at least had the advantage for the defence of avoiding any highlighting of the discrepancies between the first statement and second statement.[24]Turning to Miss Gillard’s complaint about the Judge’s treatment of the character evidence, the position was this. When he came to give evidence, the appellant, in his evidence in chief, drew attention to various previous convictions of his between 1986 and 1994 (when the appellant was aged between 16 and 24). The most serious involved offences of assault occasioning actual bodily harm and attempted robbery in 1989, for which he was sentenced to 6 months detention in a young offenders institution. The appellant’s evidence was that he had pleaded guilty to all those offences. The point was also made that these were now spent convictions; and none was in the nature of a sexual offence. At a later stage, the defence called witnesses as to the appellant’s recent good character: for example, his employer was called to give evidence to the effect that the appellant was regarded as a trusted and reliable employee.[25]In summing-up (at page 27B of the transcript)

the judge said this:

“He said, somewhat ingenuously (sic) you may think, he gave you his previous convictions and said that it was entirely his choice that he did so. Well, that is not entirely so; he has the choice, of course, as to whether he gives evidence at all, and he chose to do that, and he had a choice as to whether he wished to tell you all about his background and circumstances. But having made that choice, then it follows under the rules in which we operate that you are going to know rather more about him than would necessarily always be the case. And particularly when he has witnesses who come forward to say they think he is a man of excellent character, then it is right in fairness that you have the full picture and know his previous record of criminal offending.”

The judge then made a number of other observations about the character evidence.

[26]Miss Gillard submits that the passage we have quoted was unfair, and left the jury in a false position: it may have encouraged them to think that the defence (which was being presented throughout as one of openness) was not being open at all. She further complains that she was given no chance to address the Judge before he made those comments.[27]We are not persuaded by any of this. The Judge was making the point that, given that the appellant at trial, and as a matter of informed decision, was advancing evidence of (recent) good character the consequence, as a matter of reality, was that the jury were thereby enabled to hear (as otherwise they would not have done) matters which went the other way: and that was why they inevitably heard evidence of his previous convictions. The judge’s comment “somewhat ingenuously you may think” – meaning, as we take it, “somewhat disingenuously” – was unfortunate (assuming the jury understood it); however, we do not regard it as affecting the overall fairness of the summing-up. We would add that, a little further on in the summing-up, the Judge emphasised to the jury that the convictions were of a different kind to the present allegations and were of considerable antiquity.[28]Miss Gillard raises a more general criticism of what she says was the “unbalanced and unfair” nature of the summing up. She says that it was larded with comments adverse to the appellant; and she submits that it placed more emphasis on the case of the prosecution than on that of the defence. Further, she complains that the Judge did not marshal the evidence in a way properly analytical of the issues raised by the defence. We have considered all the various points raised by Miss Gillard in this context and have reviewed the summing-up in the light of her criticisms. Having done so, we conclude that the Judge gave adequate directions as to the law and sufficiently identified the salient issues, both on the prosecution case and on the defence case, and we reject the submission that the summing-up was larded with adverse comment and unfair.[29]Finally, Miss Gillard refers to the general “atmosphere of pressure” at the trial, particularly because of time difficulties which manifested themselves. However, Miss Gillard did not identify any instance of the conduct of the defence thereby being impeded or any tangible prejudice to the appellant. Ultimately, Miss Gillard’s real complaint is that the judge gave a majority direction far too swiftly for a case of this kind. The judge concluded his summing-up at 10.36am on Wednesday 11 September 2002. At 12.51pm he caused the court to be reconvened. Deducing that he was contemplating giving the majority direction, Miss Gillard urged him not to do so: however, the judge rejected her submission. The majority direction was then given at 12.54pm.[30]For a case of this kind and potential complexity, the majority direction was, we agree, given earlier than was desirable. Miss Cutts accepts as much. But it is to be noted that the jury clearly did not feel under any pressure; they returned a verdict at 4.01pm on that day on count 3 (anal rape) only: and that was a unanimous verdict. The remaining verdicts (unanimous on count 2 and by a majority on count 4, with an acquittal on the kidnap count) were returned at 12.20pm on Monday 16th September 2002. The delay which occurred in the interim was unfortunate, but in the event unavoidable: it did not of itself render the trial unfair or the convictions unsafe.[31]We bear in mind Miss Gillard’s submission that, in its fundamentals, this was a case of word against word (and in this respect she emphasises that the jury acquitted on the kidnap charge). She asserts, indeed, that this was a “finely balanced” case. Miss Cutts was not disposed to agree with that. She pointed, in particular, to the attempt of the complainant to leave the house by the bathroom window which was only explicable, she said, in the light of earlier mistreatment. Certainly, the appellant could offer no explanation. Miss Gillard said that the matters of which she complains on this appeal, taken together, may well have tilted the balance against the appellant. We have considered all Miss Gillard’s points in totality and whether (as she suggested in argument) they raise a lurking doubt as to the safety of these convictions. We consider that there was here a fair trial. The principal issues raised were pre-eminently issues for the jury. The jury reached their verdicts having heard all the evidence and having been sufficiently directed in the summing-up. Despite Miss Gillard’s able submissions, this court is not persuaded that the convictions are unsafe. The appeal is therefore dismissed.