Anwar, R. v [2007] EWCA Crim 3226

No: 200702744/B3[2007] EWCA Crim 3226
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 23rd November 2007
Between
R E G I N ACrown
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GAGE
MR JUSTICE UNDERHILL
SIR RICHARD CURTIS
v
Between
ZUBAIR ANWARComputer 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 A Jeffries appeared for AppellantMr G Porter appeared for CrownJudgment

LORD JUSTICE GAGE:

[1]On 21st October 2005 at Luton Crown Court, this appellant was convicted of rape. He was sentenced to 8 years' imprisonment. He now appeals his conviction by leave of the Single Judge.[2]The facts and evidence before the Court were as follows. The appellant worked as a security guard for a firm of engineers who had a number of sites alongside the Great Barford bypass in Bedfordshire. He was based in a compound and would visit the sites at night on patrol.[3]On 21st April 2005 he saw the complainant, a girl aged 14 years, whom we shall refer to throughout as H, outside the compound. They spoke. She entered the compound and then left with him shortly thereafter in his patrol car. He drove to a secluded area. They had sexual intercourse in the vehicle. In the early hours of 22nd April 2005 she telephoned the police from a call box and reported that she had been raped. The police attended. She was taken to a police station where she was medically examined. The prosecution case was that she had been raped by the appellant.[4]The defence was consent. The appellant said that he and H had kissed and cuddled and engaged in foreplay prior to the sexual intercourse, all of which H freely consented to.[5]Since the trial the prosecution has disclosed to the defence material which it is submitted, on behalf of the appellant, substantially damages the complainant's credibility such as to render the verdict unsafe. The appellant seeks to rely on this as fresh evidence. We shall refer to it in more detail later in the judgment.[6]Going back to the evidence of H, she said, giving evidence via a video recorded interview, that at about 6.30 in evening of 21st April 2005 she absconded from the children's home in Wilden near Bedford where she lived. After walking for about 2 hours she sat outside a compound. A security guard, the appellant, asked if she was lost. She told him she needed to go to the Dartford Tunnel. He asked if she wanted directions. He said he would get a map, and they both went inside for about 10 minutes. She told him she had to leave and he said that they would have to leave in his patrol car as the gates were shut and there was no other means of getting out. Once out of the compound and driving she asked the appellant to stop. He said he was taking her somewhere. He drove for a time and then stopped down a dusty path, switching off the car engine. He asked questions about her losing her virginity and told her:
"You're going to be a good girl and you're going to be quiet"
. He touched her in the genital area and she told him to stop. She screamed. He told her:
"Be quiet otherwise it will hurt"
. He said he was only playing games with her. He told her to get into the back of the vehicle but she refused. He pushed her down, she shut her eyes and he then raped her vaginally. Afterwards she put her clothes on and ran from the car.[7]Before the assault she said she dropped into the appellant's car the cover of her CD, her earphones and some strands of hair which she had pulled out. She said she did that so someone would know she had been there, as she was suspicious of the appellant. She had also pulled out some of her hair and left it at the compound for the same reason. There were other witnesses called at trial.[8]The defendant was subsequently arrested. He was interviewed. At interview he answered all the questions put to him. He said that he had put his arms round the appellant to comfort her and that the intercourse that they had was consensual. He repeated that defence in the course of his evidence which he gave at trial.[9]We turn to the issues in this appeal. There is now before the Court, in an agreed bundle, material which shows that H, subsequent to the trial, has been involved in a number of other incidents. There is also material in the form of letters written by H to the police officer in the case, following the trial, in which she says that her evidence given at the trial was a lie and that she had consented to sexual intercourse with the appellant. We summarise the evidence of the other incidents in the following way. Incident 1, as it has been called, is an incident which took place on the night of 6th/7th November 2005. In short the material shows that on that night H and another girl were out in the evening. In the course of the evening they met two men and went back to their house. There, it was alleged, one of the men raped H's friend. Subsequently H said that she had sexual intercourse with one of the other men. After the enquiries the police decided to take no further action, H having said initially said that she was raped and then said that intercourse was consensual. The second incident is an incident which is said to have taken place on 27th December 2005. In respect of it H alleged that she had been raped. Some days later she maintained that she had not been raped and that she had sexual intercourse by consent. In the material before us there is a statement signed by H in which she withdraws the allegation of rape. The third incident is an incident which is said to have taken place on 18th January 2006. In short H telephoned the police and alleged that she had been raped. A suspect was arrested. He admitted to having consensual intercourse with H. The police having considered the matter were advised by the Crown Prosecution Service to take no further action.[10]So far as the letters written to the police officer in the case are concerned, at page 154 of the documents before the Court there is a letter sent postmarked 15th February 2007 in which in one paragraph H said:
"I am writing this letter to tell you that he didn't rape me and I lied, I lied so I could gain control over my life. I had consensual sex with him and told him I was 16."
Again, on the page 158 of the documents there is a document signed by H, dated 11th February 2007, which reads:
"Zubair Anwar [we interpolate the appellant] did not rape [H] on Thursday 21st April 2005. I consented sex with Zubair Anwar and told him I was 16."
It has to be said that the whole correspondence, if read together, shows that there are some inconsistencies in what H was saying about the original offence of rape.[11]The submission to this Court made on behalf of the appellant is that this constitutes fresh evidence, which this Court can receive and that the fresh evidence is such as to render the verdict of the jury unsafe.[12]The provisions for the receipt of fresh evidence by this Court are well-known. They are set out in section 23 of the Criminal Appeals Act 1968. It is unnecessary for us to site the provisions of the section, it is accepted, on behalf of the prosecution that this is fresh evidence which this Court can receive and we do receive it. The question therefore is: does it render the conviction unsafe?[13]The issue to which the evidence is germane is the question of the credibility of H. In his skeleton argument Mr Jeffries has referred us to the relevant authorities. The most relevant, in our judgment, is the case of R v RT and MA [2002] 1 WLR 635. There is in addition another decision of this Court, R v E [2004] EWCA 1313 which deals with the incidents post the event of a conviction which is precisely the same as in this case. We refer briefly to paragraph 9 of the judgment of the Court given by Buxton LJ in which he sets out conveniently the test in T which reads:
"... The defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue. If those requirements are not met, then the questions would not be about lies but would be 'about [the] sexual behaviour of the complainant' within the meaning of section 41(1). The judge is entitled to seek assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue. That requirement met was in T. It was not met in the present case. Because none of the later allegations had been investigated, there was no evidence that they were untrue."
[14]Turning to the incidents 1, 2 and 3 in this case, Mr Trimmer, on behalf of the respondent, concedes that incidents 1 and 3 are likely to be incidents which would be admissible for the purposes of cross-examination of H at trial. He submits that incident 3 is not such as to be capable of being placed before the jury as admissible because it offends against the statutory provisions relating to the admission of evidence of previous sexual conduct of a complainant.[15]The submission made on behalf of the appellant by Mr Jeffries is what this material reveals is a course of conduct by the appellant when she is away from the home in which she is based. It is submitted that it shows that she escapes or leaves the home in order to see her mother. She then puts herself in a position where she has sexual intercourse and subsequently tells lies about it. Accordingly, it is submitted that all these incidents form material upon which it would be proper to cross-examine her as to credibility. In addition it is conceded by Mr Trimmer that the letters written to the police officer are material which could be cross-examined to in the course of any trial.[16]The main submission made on behalf of the respondent, in response to this ground of appeal, is that there is now psychiatric evidence about H. There are before this Court two psychiatric reports. The first by Dr Ann Jasper, a clinical psychiatrist and the second, a report by another clinical psychiatrist. In each of these reports the psychiatrist reached the conclusion that H is suffering from post traumatic stress disorder. It is their opinion, in essence that the trauma is the trauma of the offence which has brought on this condition. It is submitted that her conduct, post the event of the offence and the trial is evidence of PTSD, and accordingly the complaints are entirely consistent with that condition.[17]Mr Trimmer submits to this Court that this fresh evidence must be seen in the light of that psychiatrist evidence. He accepts that by agreement with the Court and counsel this Court has not heard from the psychiatrist. Nevertheless, Mr Trimmer submits that looked at in light of the undisputed psychiatrist evidence, this Court can be entirely satisfied that the conviction is safe. However, Mr Trimmer concedes that if this Court is not prepared to take that course, then the material is such that is bound to render the conviction unsafe.[18]In our judgment the fallacy of the argument made on behalf of the respondent in this case that although the conduct subsequent to the trial may be consistent with H suffering from Post Traumatic Stress Disorder, it is not possible to say that it is only consistent with that syndrome. In our judgment, the question of whether or not it is so consistent and whether or not H is telling the truth is one for a jury to decide, having heard, if it is admitted, the evidence of psychiatrists and H give evidence. The jury can judge her evidence against the background of such psychiatrist evidence as is called. That being our conclusion in relation to the psychiatric evidence and the submission made on behalf of the respondent, it must inevitably follow, in our judgment, that this appeal must be allowed. The verdict cannot be said to be safe and accordingly we allow the appeal.[19]We will now deal with any consequential orders which follow.

LORD JUSTICE GAGE: I take it you are asking for a retrial? You said you could not oppose it, Mr Jeffries?

[21]MR JEFFRIES: No.

LORD JUSTICE GAGE: Can we have the form? We allow the appeal. We quash the conviction. We order that the appellant is retried on the one count on the indictment. A fresh indictment must be preferred and we direct that the appellant be rearraigned on the fresh indictment within 2 months and at a court which must be designated by the presiding judge of the south eastern circuit. Are there any other directions?

[23]MR JEFFRIES: There is no written application for bail, there was at one of the earlier hearings, I think on the oral application for leave hearing, an intention to make an application for bail. It was not proceeded with on that occasion. The appellant was originally on bail in the run up to the trial, there were never any difficulties with his bail. I wonder without notice today whether your Lordships would consider--

LORD JUSTICE GAGE: I have to say, speaking personally, I normally prefer it to be dealt with by the Crown Court.

[25]MR JEFFRIES: Certainly.

LORD JUSTICE GAGE: You will need a representation order, will you not?

[27]MR JEFFRIES: Yes, please.

LORD JUSTICE GAGE: Very well, we grant it. Thank you both very much.