Brand, R. v [2009] EWCA Crim 2878

Case No 200804978D1

[2009] EWCA Crim 2878

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 18 December 2009

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE ELIAS

MR JUSTICE NICOL

HIS HONOUR JUDGE SCOTT-GALL

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

PAUL JAMES BRAND

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Mr H Baker appeared for Appellant

Miss J Treharne appeared for Crown

J U D G M E N T

LORD JUSTICE ELIAS:

[1]On 4 April 2008 at the Crown Court at Cardiff, before HHJ Hopkins QC, the appellant was convicted of theft. The jury failed to agree a verdict in respect of two counts of kidnapping and rape. The co-accused, Lee Chapman, was found not guilty at this trial on the count of kidnapping. That was the only count he faced.

[2]On 12 August 2008 at the Crown Court at Newport, before HHJ Morris, the appellant was retried and he was unanimously convicted both of kidnapping and rape. He was then sentenced on 30 September as follows: on count 1, which was the kidnapping charge, two years' detention in a Young Offender Institution; consecutive to count 2, which was the rape charge, seven years' detention in a Young Offender Institution; and on count 3, for theft, he was given 15 months' detention in a Young Offender Institution concurrent. So the overall sentence was nine years' detention in a Young Offender Institution. Allowance was made for days spent on remand, and a sexual offences prevention order was made requiring him to advise the Public Protection Team of any vehicle he owned or had access to as a driver. He now appeals against conviction by leave of the single judge.

[3]The facts are essentially as follows. On 13 October 2008, the complainant went out to Newport with friends. She had a lot to drink, became separated from her friends and began to walk home at about 4 o'clock in the morning. She was picked up in a car by the appellant, who was the driver, and Lee Chapman, who was in the back seat. She had apparently recognised the two men from having seen them at one of the bars earlier in the evening. The three of them then agreed to drive around in the vicinity of Newport. There was evidence that the car stopped on two occasions, but there is some dispute as to precisely what happened on these occasions. The complainant said, however, that Chapman, sitting in the back, had been abusive. He had asked her to give them both a "blow job" and threatened she would be taken to Wentwood Forest, a place known because there had been a recent murder. She said she had at one stage kissed the appellant. She wanted him to take her home. He was asking her on a number of occasions for sex, and he tried to put her hand on his crotch. Instead of being taken home, she was driven against her will to Llanwern Village, a lonely spot outside Newport. She was feeling scared. Eventually they came to a dark unlit lane, where the car was reversed and stopped. Her case was that she was dragged from the car, the appellant grabbing her hair and her right arm, pulling her from the vehicle. He took her to the back of the car, pushed her to the ground, and then had sex with her. She was compliant because she was scared.

[4]After the rape which she alleged had taken place, she went to get back in the car. Chapman meanwhile had stayed in the car. However, as she tried to get back in, the appellant pushed her out of the car and the two men drove off. She fell over, injured her knee and that caused bleeding. She was very shocked. She walked away and did not at this stage have her handbag, which she said she left in the car. She stopped a motor vehicle driven by a Mr Probert, and explained to him what had occurred. The police were called, and she was taken for interview and medical examinations and so forth.

[5]The appellant's case was that she had at all times been in control of things. She had wanted to drive around. She had wanted to have sex with him, and had suggested at the spot that they should have sex. She had had her handbag with her at all times, and indeed he said that he was intending to take her back in the car, but that after they had had sex, she tried to get in the passenger door but it was locked. She lost her temper. She shouted and screamed at him for locking her out, and she was kicking and hitting the car repeatedly with her handbag. He noticed when driving away that she had fallen over. He said that he returned at that point to tell the complainant that he would take her home, but she refused.

[6]When the police went to his house, they discovered a mobile phone that was hers, but not the handbag. She said that she had left the mobile phone in the car, but he had never seen the handbag and had done nothing with it. The jury heard evidence from a number of parties: one of these was a young woman called Hayley Williams. She had apparently read in the newspapers about this event and had gone to the police. She said that she had received telephone calls from the appellant on the day before this incident. She had met him at a club outside Newport about a week before. She said she had received both telephone calls and text messages from him. He had asked her where she was and where she lived. She said she had hung up. He told her in one call that he and his friend, Lee Chapman, would come and take her out and do dirty things to her, and then there was a threatening call in the evening at around 7 or 8 o'clock, when he said:

"I'm going to take you and I am going to fuck you and me and Chapman are going to take you away and kidnap you."

[7]She said he made a later call at about 10 o'clock in which he apologised, and she also said that she had made a call to a friend of hers, Jason Baker, at about 8.30. Her mother also gave evidence, and she indicated that Hayley had been very upset by these telephone calls. She had heard her telling a caller to "Fuck off", and she reproved her daughter because of the bad language. Hayley had also told her that a man had said that he would come and "shag Hayley", and that he and another boy were going to come up and get her.

[8]The question arose before the judge as to whether two pieces of evidence should be admitted. The first was the telephone records of Hayley Williams and her evidence about the conversation she had with the appellant. The second was whether the jury should hear of the conviction for theft at the first trial before HHJ Hopkins. The issue of whether the telephone records should be admitted had been considered at the first trial before HHJ Hopkins. At that point the issue was treated as a question of admissibility under section 78 of PACE. The appellant had submitted that the material should not be admitted because it was inherently unsafe. The records showed, it was said, that, contrary to the assertion that she had made in interview, it was she who had telephoned the appellant first and not the other way round. In addition, she rang him on a number of occasions which she had not admitted. Perhaps most importantly, there was no record of the telephone call at 8 o'clock in the evening that was supposed to contain the threat of kidnap and rape. There was no record of the 10 o'clock phone call relating to the apology, and there was no record of the phone call made to Jason Baker. Furthermore, she had said that she had kept a record of the telephone calls that the appellant had made to her.

[9]The judge on that occasion considered that the evidence should not be admitted, but the issue arose again at the second trial. The Crown submits that there were in fact a number of features which changed between the two trials, and which could perfectly sensibly explain why HHJ Morris took a different view to HHJ Hopkins. In particular, Miss Treharne for the Crown points out that by then it had become clear that in fact the first contact had been made by the appellant and not the other way round, as had been originally thought. He had telephoned Hayley very early in the morning. Second, there were text messages which were consistent with what the witness had been saying about unpleasant texts being received at around lunchtime. Third, there was evidence that, on occasions, the appellant used the phone of Lee Chapman, and that he did use 141 in order to conceal his identity. There was also evidence of two unidentified calls which were made in the evening roughly at the time given by Hayley Williams, which could be the relevant phone calls and could account for the fact that the appellant's phone number had not been recorded on her telephone.

[10]In any event, we should say that, in our view, the judge at the second trial had to reach his own independent view as to whether this evidence was admissible. The argument advanced before him was essentially the same as had been advanced before HHJ Hopkins. It was said that the records simply did not bear out the evidence which this witness sought to give. It was accepted that it was potentially important evidence by the second trial. In fact, it had been recognised that it was bad character evidence and would be admitted under section 101D of the Criminal Justice Act 2003. Indeed, the submission is that it is potentially so important that this was why it ought not to have been admitted, and the judge ought to have excluded it under section 101(3) of that Act, which provides that the evidence should not be admitted "if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".

[11]The judge accepted that there was potential difficulty with this evidence, but he noted that the witness had given very clear, strong and unambiguous evidence that these conversations had taken place as she alleged. She could not explain why they were not recorded in her telephone, but she remained adamant that what she was saying was the truth. In these circumstances, the judge considered that it was a matter which ought to go to the jury. It was for them to assess the potential reliability of this evidence, and to consider whether, notwithstanding the apparent contradictions between her statement and the records, the jury could still rely upon what she was saying. In our judgment, this was a proper conclusion open to the judge.

[12]The appellant's state of mind was obviously highly material, and we think that the judge was entitled to conclude that, notwithstanding some of the difficulties with this evidence, it ought to be left to the jury. It plainly had significant probative value. It would be prejudicial if it were untrue, but that was a matter for the jury to consider, and the judge summed up this element of the evidence fairly to them, and told them that they had to be cautious in the way in which they approached this evidence.

[13]Accordingly, we do not think that there is any error here such as to cast doubt on the verdict.

[14]We turn to the question of the conviction with respect to the theft. The judge appears to have considered that the prosecution were seeking to adduce this as bad character evidence. That seems to be the way in which this issue was addressed at the time. We are quite satisfied, however, that the conviction in relation to this theft was not bad character evidence. That is defined in section 98 of the 2003 Act in the following way:

"References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which— (a) has to do with the alleged facts of the offence with which the defendant is charged ..."

[15]In this case, there can be no doubt in our view that the question of conviction for theft fell clearly within the terms of paragraph (a). It has to do with the alleged facts of the offence with which the defendant is charged. It was plainly highly material to the question of who to believe in relation to the handbag and whether it had remained within or without the car. It was also material to the wider question of credibility, and to the state of mind of the parties immediately after the rape had taken place.

[16]The judge, in summing-up with respect to this aspect of the evidence, told the jury that the conviction was relevant "only to that issue of how she was behaving in Llanwern Village, their respective states of mind at that time and their respective credibilities as a witness". Mr Baker points out that it would not be directly relevant evidence as to the question of consent itself. We accept that, but that is not how the judge dealt with it. We think he dealt with it fairly. It was plainly admissible in the normal way because it did not constitute bad character under section 98. It was plainly relevant evidence. The only basis for excluding it would have been under section 78, and Mr Baker in effect realistically accepted that there would be no proper basis on which it could be excluded under that section.

[17]Accordingly, the appeal against conviction fails. (Submissions in relation to sentence follow)

LORD JUSTICE ELIAS: This is an appeal against sentence. We have just dealt with the facts of the case in dealing with the appeal against conviction. The only issue, it seems to us, is whether it can be said that the sentence of nine years here is manifestly excessive. Mr George submits this it is; that the appropriate sentence in the relevant guidelines stipulates as a starting point eight years, where the rape is accompanied by an aggravating feature. He submits the only aggravating feature here was the abduction of the victim. Accordingly, he says that eight years would have been the appropriate sentence, and that the judge was not justified in imposing nine.

[19]We disagree. We think it is too simplistic to say that abduction was the only aggravating feature. There were other aspects about this particular rape which made it very unpleasant. In particular, the woman was taken to a dark place where she was abandoned. There was another man in the car which would have heightened to some extent her concerns. The rape was committed in his presence, albeit that he was sitting in the back of the car. The question we have to bear in mind is not whether we would have imposed the sentence of nine years, but whether it could be said to be manifestly excessive. We do not think it can. It is true the judge reached this figure by two consecutive sentences of seven years for the rape and two for the kidnap, but nothing, in our view, turns on that. We might have been minded to give a single sentence, but there is nothing wrong in deciding to mark out the kidnap element separately.

[20]There was, in addition, the point that there was a theft of the bag. So for these reasons, we do not think it can be said that this sentence was excessive. It is within the range and comfortably within the range laid down in the guidelines.