Vyas, R. v [2010] EWCA Crim 973

[2010] EWCA Crim 973

Case No 201000411 C3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 22nd April 2010

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE STANLEY BURNTON

MR JUSTICE TUGENDHAT

RECORDER OF BRADFORD

HIS HONOUR JUDGE STEWART QC

(Sitting as a judge of the Court of Appeal Criminal Division)

Between

R E G I N ACrown

Between

SANJAY VYAS

Computer Aided Transcript of the Stenograph Notes of

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Miss C O'Connor appeared for Appellant

Mr G Mohabir appeared for Crown

J U D G M E N T

(As approved)

LORD JUSTICE STANLEY BURNTON:

[1]On 11th December 2009, at Southwark Crown Court before His Honour Judge Stone QC and a jury, the appellant was convicted by a majority of sexual assault and he was subsequently sentenced to 18 months' imprisonment. The normal order of Schedule 3 of the Sexual Offences Act applied and he was ordered to pay a sum by way of costs. He appeals against his conviction by leave of the single judge.

[2]The incident which formed the subject of the indictment took place in the early hours of 21st November 2008 on a train that began at Kings Cross St Pancras Station in London and went at least to St Albans, if not beyond. Both the appellant and the complainant boarded that train at about 3.20 in the morning. They had both been waiting on the platform. The complainant had been sleeping on the platform bench for some time. The appellant sat down next to her a few minutes before the train arrived. The complainant is a young lady who had been drinking earlier in the evening. She entered the first carriage and sat down next to the window in the first set of four seats. There was one other person in the carriage and he was asleep. Shortly afterwards the appellant, who had entered the third or fourth carriage, walked back through the train and entered her carriage and sat down on the sit opposite her. She was resting her foot on the seat opposite. The prosecution case was that the appellant proceeded to take hold of the foot and massage it and continued to engage in what was in fact sexual activity towards her until he got off the train at Mill Hill station. She remained on the train until St Albans.

[3]When she got off the train she caught a taxi to go to the police station. She found it was closed. She rang her mother in a state of some distress and then rang the police. She complained on the telephone to the police that the appellant had molested her on the train.

[4]The appellant attended the police station, where he was arrested and interviewed subsequently. He declined to answer any questions put to him and relied on a prepared statement, which read:

"I wish to deny the allegation of sexual assault which occurred on a train between St Pancras International and Mill Hill Broadway stations on 21st November 2008.” In March 2009 he returned to the police station following the discovery of semen bearing his DNA on a sock of the complainant. He was told of that and was interviewed for a second time. He again declined to answer any questions put to him. He again relied on a prepared statement, which read: "

I wish to deny the allegation of sexual assault, save to say that any sexual touching was by the consent of both parties."

[5]The case for the prosecution was that the appellant had sexually assaulted the complainant by touching her thigh, bottom and groin and placing her hand on his penis. He knew she had not consented to such sexual activity as she kept pulling away from him. His case was that she had consented to his massaging her foot. Apart from that, there was no sexual contact between them. He had masturbated himself. She had not objected, indeed consented, following which he touched her foot which resulted in his DNA being found on her sock.

[6]The principal and crucial evidence of course was that of the complainant, who described how she had got on the train, where she had sat, that a man had entered the carriage and sat down opposite her, that of course, it was common ground, was the appellant. She described what he had done in terms of picking up her foot and putting it in his lap and so on. She said she felt uncomfortable and did not want to make a scene and pretended to fall asleep again. He had rubbed her foot up and down his inner thigh and into his groin before putting her sock and shoe back on. She said she was tired and groggy and did not remember him removing her sock and she had found him rubbing his hand up and down her thigh. He leant forward and rubbed her bottom with his left hand before touching her groin and around her vagina. She said that she forcefully moved away from him and then pulled up her legs so that she was curled up in a ball on the seat. He moved onto the seat next to her, took hold of her hand and began stroking it. She described what had happened, including his forcing her hand into his groin and trying to put her hand into his trousers. She thought that she had felt his penis. He got off the train at Mill Hill station. She said that she was upset once he got off the train. When she got off the train, and it was shown from CCTV, she did not attempt to speak to any staff who were on the platform at St Albans, but her evidence that she had gone to the police station in a taxi was not challenged. The police station was closed, it being the middle of the night. She then spoke to her mother, following which she made a complaint to the police.

[7]Her mother also gave evidence, as did the appellant. His case was that, although he had never met the complainant before, she had agreed to what had taken place, including his masturbating himself which resulted in his ejaculation. Throughout what had occurred there was no indication on the part of the complainant that she was unhappy. In brief, his defence was consent.

[8]The complainant was cross-examined at some length. There were undoubtedly a number of inconsistencies in her evidence, in particular as to whether or not she fell asleep during the journey between Kings Cross St Pancras and Mill Hill and whether she knew that her sock had been taken off or not. On her evidence also there was no explanation of how the semen came to be on her sock, which undoubtedly it did. It is also said that she had an opportunity while on the train after the appellant had left the train to inform her mother what had happened. She received a text message from her mother asking about her and whether she was all right and her reply was simply "I am on the train on the way home", and it was only after she had arrived at St Albans that there appears to have been any complaint.

[9]The ground of the appeal is that the summing-up was unfair, unbalanced and failed to direct the jury and to remind the jury of the significant points made on behalf of the appellant during the cross-examination. We accept that this summing was a defective -- indeed, a very defective -- summing-up. The appellant was entitled to have the jury reminded by the judge in the summing-up of the significant points made during the course of the cross-examination of the complainant, and in particular on any matters which would indicate unreliability in her evidence, and we have just referred to the principal ones relied on on this appeal.

[10]It is said on behalf of the prosecution that the summing-up was balanced because the judge did not remind the jury of the cross-examination of the appellant either. That does not cure the defect in the summing-up resulting from his failure to deal with the cross-examination of the complainant.

[11]The summing-up was so defective that the judge did not, until reminded by counsel, direct the jury as to the burden and standard of proof required in a case such as this. Happily, that defect in the summing was remedied. But when asked by Miss O'Connor, who quite properly complained to the judge that the points she had made during her cross-examination of the complainant had not been put to the jury, the judge said, astonishingly, that it was not his practice to do so. So on this appeal the appellant starts from the position in which we accept that the summing-up was defective.

[12]However, the question for us is whether the conviction was unsafe. It is true that there were inconsistencies in the account of the complainant. However, all the points that have been made so powerfully before us today by Miss O'Connor were made during the course of cross-examination, and no doubt in her speech. The complainant had given evidence on a Tuesday, 8th December. The appellant had given evidence on the following day and the summing-up was on Thursday, 10th December, so that all these points and the evidence in cross-examination of the appellant would have been fresh in the minds of the jury. The case against the appellant was very powerful indeed. On his case, a young lady in the early hours of the morning, admittedly having had some drink, gets into a train and begins a sexual encounter with a man considerably older for no reason at all. Having agreed to a sexual encounter, she gets off the train and almost the first thing she does is to take a taxi to the police station. She is thereafter in a state of distress, and it is difficult to see of any reason why, if she had agreed to a sexual encounter, she should then have gone to the police station.

[13]In our judgment, although the complaints as to the summing-up are well-founded, this is a case in which the matters relied on are of a kind which would have been fully in the mind of the jury. The case against the appellant being so powerful, we have no doubt that this conviction was and is safe notwithstanding the defects in this summing-up. The vagaries in the evidence of the complainant are not surprising having regard to the fact that this matter happened when she had had some drink, when she was tired and when no doubt, on her case at least, there was a degree of concern, worry and tension as to what was happening to her. It is not to be expected that there will be perfect recollection in such circumstances. The issue in this case was not precisely what had happened, nor was there the issue as to whether or not there had been a sexual encounter, the only issue was consent. So far as that is concerned, the evidence, in our judgment, was overwhelming. In those circumstances, the appeal is dismissed.