SZ, R. v [2007] EWCA Crim 2018

Case No 2007/0103/B3[2007] EWCA Crim 2018
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 31 July 2007
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE DAVIS
THE RECORDER OF NOTTINGHAM
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
S Z
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr G O'Connor appeared for AppellantMr J Hardy and Miss H Llewellyn-Waters appeared for Crown
J U D G M E N T

LADY JUSTICE HALLETT:

On

[1]5th December 2006 in the Crown Court at Middlesex Guildhall before His Honour Judge Ader, the appellant was convicted of two counts of rape. He appeals against conviction by leave of the single judge limited to one ground, namely the judge's directions to the jury on consent and reasonable belief in consent.[2]The complainant, the appellant and his wife are all from Korea. The complainant had been employed by the appellant as a tour guide. She said that on 30th October 2005 she left her employment with him. She arranged to meet his wife to pick up her wages. His wife told her she would have to wait for some of her money. This led to another meeting on 11th November 2005. The appellant's wife asked the complainant to have dinner with them and promised to give her her remaining wages. They went to dinner in Chinatown and they went from a restaurant to a karaoke bar. The complainant had too much alcohol to drink. She ended up lying on the floor of the lavatory at the karaoke bar. She recalled the appellant's wife helping her on to the appellant's back. She vomited a number of times, including on his back. She said she was nearly unconscious. She took it for granted she was being taken home. In fact the appellant and his wife took her to a hotel. Mrs Z said this was because they did not know where the complainant lived. The manager of the hotel described the appellant and his wife booking a triple room, which was the only one available. He thought the complainant was a child sleeping on the appellant's back.[3]It was not until the following morning that the complainant became aware of her surroundings. She found she was lying on a bed. She was dressed only in her socks. She did not know how she got onto the bed or how she became undressed. She saw someone moving about in front of her and realised it was the appellant. His penis, she said, was inside her and it was very painful. She screamed. She turned her body to one side. She then lost consciousness having remembered only about 10 seconds of the intercourse. She awoke a second time to find the appellant again having intercourse with her. She again fell asleep or lost consciousness. She eventually awoke some time after 10 o'clock in the morning. Someone had dressed her partially. The appellant was sleeping on another bed. She was still drunk and her head was throbbing. Much of her clothing was covered in vomit.[4]On 14th November she telephoned a helpline in a distressed state. She went to the police where she was interviewed and examined by a doctor. The doctor found abrasions to the entrance to the vagina consistent with recent intercourse. He could not say whether the intercourse had been consensual or not.[5]When arrested on 29th November the appellant immediately said the intercourse had been consensual. He said he did not think the complainant had been really drunk because she had vomited. This he thought would have caused her to sober up. He described in interview and at trial that he believed that the complainant was encouraging sexual activity with him. He described her responding physically towards him when they were in the hotel bedroom. He accepted that intercourse occurred on two occasions. He was concerned, apparently, that his wife should not wake up during the intercourse.[6]The appellant's wife also gave evidence at trial. Her role in this affair is some what curious. She suggested the complainant was not really drunk. She also suggested the complainant had been flirtatious with her husband and gave all appearances of agreeing enthusiastically to have sex with him.[7]Leave to appeal is confined to the issue of whether the judge ought to have directed the jury that sufficient evidence had been adduced to raise an issue as to whether the complainant consented, as to whether the defendant reasonably believed that she did and therefore the prosecution had to make the jury sure the complainant did not consent and that the defendant did not reasonably believe that she did.[8]The relevant sections of the Sexual Offences Act 2003 are sections 74 and 75. Under the heading "Consent" section 74 provides:
"For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice."
Under the heading "Evidential presumptions about consent", section 75 where material provides:
"(1) If in proceedings for an offence to which this section applies it is proved- (a) that the defendant did the relevant act, (b) that any of the circumstances specified in subsection (2) existed, and (c) that the defendant knew that those circumstances existed, The complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it."
Subsection (2):
"The circumstances are that- (a)... (b)... (c)... (d) the complainant was asleep or otherwise unconscious at the time of the relevant act; (e) ... (f) ... Subsection (3)..."
At page 5 of the summing-up, the judge directed the jury on the elements of rape. At 5D he began his directions on this issue in this way:
"So there are three elements involved. First of all that he intentionally penetrated her vagina, secondly that she did not consent to the penetration, and thirdly, that he did not reasonably believe that she consented."
These directions related to count 1 and he then indicated the same directions would apply to count 2. He said this at letter F:
"Count 2 is on an occasion other than in count 1, exactly the same particulars, intentional penetration of TYK who did not consent and the defendant not reasonably believing that she consented."
He continued at 5G:
"Well now, what is it that is required then for the prosecution to prove? Well, those three things. First that there was intentional penetration of her vagina by the defendant, and that first requirement is not an issue in this case. The defendant says, 'Well, we had sex, I did penetrate her on two occasions.' So in each of these counts you need not take time over that question. The second is that she did not consent to that act. A person consents only if he or she agrees by choice and has the freedom and capacity to make that choice. I'll just repeat that, because it's important. A person consents only if he or she agrees by choice and has the freedom and capacity to make that choice. And the third requirement is that the defendant did not believe that she was consenting or any belief on his part that she was consenting was not a reasonable belief. So if you decide the defendant did believe or may have believed that she was consenting, and you are considering whether that belief was reasonable, you should take into account all the circumstances as they occurred at the time, including any steps the defendant took to ascertain whether she consented."
The judge then summarised at 6C to F the evidence upon which the prosecution relied to indicate the complainant's lack of capacity.[9]This brings us to what is, in Mr O'Connor's submission, an offending passage. At page 6G

the judge directed the jury in these terms:

"If you are sure that this is so, that she was asleep or unconscious and that the defendant knew it, then by law you must find that Miss K did not consent to his act of penetration, or that the defendant did not reasonably believe that she consented to his act. Because in the circumstances where, if you so find, the complainant was asleep or otherwise unconscious at the time of the relevant act then Parliament has decreed, if the defendant knew that those circumstances existed, that the complainant is taken not to have consented to the relevant act, namely of sexual intercourse, unless sufficient evidence is adduced to raise an issue about whether she consented. And the defendant is taken not to have reasonably believed that she consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it."
Any punctuation, it should be remembered, that appears in the transcript of the summing-up was the responsibility of the stenographer and not the responsibility of the trial judge. It may be therefore that all ten lines were intended to form one very long sentence. As far as the first three lines are concerned, Mr O'Connor places considerable emphasis on them:
"If you are sure that this is so, that she was asleep or unconscious and that the defendant knew it, then by law you must find that Miss K did not consent to his act of penetration, or that the defendant did not reasonably believe that she consented to his act."
In our view there could be no doubt that the first three lines could have been better phrased. However, they do not stand alone. The entire paragraph must be read together. One cannot take those first three lines without the rest of the paragraph, nor can one ignore the rest of the summing-up. Nevertheless, Mr O'Connor, claiming that he was not intending to cherry pick, argued that the judge erred in law by what appears to have been an elevation of the section 75 presumption into a conclusive presumption. As he rightly reminded the court, the conclusive presumptions appear in section 76. The presumptions in section 75 are expressly stated to be evidential. He rejected what some may see as the judge's subsequent qualification of those first three lines as being insufficient. He argued they would not have operated sufficiently on the minds of the jury and the effect therefore, he submitted, was that the jury was left to consider but one issue which was whether or not the complainant was asleep or unconscious.[10]Mr Hardy for the prosecution divided the issues for this court into two. First: is the determination of the question of whether a defendant has adduced sufficient evidence to displace the section 75 presumption a matter for the judge or the jury? Second: what is meant by the term "sufficient" as qualifying evidence. He submitted that the task of determining whether there is sufficient evidence to displace this presumption falls to the trial judge. It is then for the defence to adduce sufficient evidence to raise the issue. It is an evidential burden. Put another way, provided the defendant himself gives or otherwise adduces evidence capable of rebutting the presumption it becomes a matter for the jury whether the Crown has discharged the burden upon it of disproving the defence to the criminal standard. The Crown maintain that the overall effect of the summing-up was to leave the jury in no doubt that actual consent on the part of the complainant or a reasonable belief in the complainant's consent on the part of the defendant were matters that the Crown had to disprove to the criminal standard. We agree. As Mr Hardy observed, the judge gave the jury full and fair directions on the burden and standard of proof. He correctly directed the jury on the elements of rape which the Crown had to prove on several occasions, both before and after the passage about which complaint is made. He did not withdraw any issues from the jury. He left all the elements of rape to them. In addition to summarising the evidence upon which the Crown relied to prove a lack of consent and lack of reasonable belief in consent, immediately following the offending passage the judge summarised the evidence upon which the defence relied as sufficient evidence, not only to raise an issue about whether the complainant consented but also to prove that she had or may have done. He concluded his remarks on this aspect of the summing-up with the following observations at page 7E:
"So there is the issue between the parties. Firstly, did she consent? Secondly, did the defendant reasonably believe that she consented? Or rather, have the prosecution proved that he did not reasonably believe that she reasonably consented, because the burden is always on the prosecution to prove."
Those directions, we note, followed almost immediately upon defence counsel's speech which we have no doubt focused almost exclusively on the same two issues. In our view the jury could have been in no doubt whatsoever what they had to decide, namely had the prosecution proved so that they were sure that the complainant did not consent and the defendant did not reasonably believe that she had consented? To our mind that disposes of this appeal and we do not need to trouble further with, with respect to him, some of Mr Hardy's more esoteric arguments as to conditions precedent. We do however agree wholeheartedly with observation that none of the difficulties that have arisen in this case would have arisen had the trial judge conducted a proper enquiry of counsel as to the effect of the presumption and the appropriate directions to be given to the jury on the facts of the case. Trial judges would be well advised to heed guidance given by this court in the past that they should consult with counsel where any matters of any difficulty on the law arise.[11]Having said that, we have no doubt about the safety of this conviction. Accordingly this appeal must be dismissed.

Cited in 3 later judgments