Shirley, R v (Rev 1) [2013] EWCA Crim 1990

Case No 2012/06140/C3[2013] EWCA Crim 1990
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT BRISTOL
The Honourable Sir Michael Astill
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/11/2013
Before
LORD CHIEF JUSTICE OF ENGLAND AND WALESMR JUSTICE WILKIEMR JUSTICE JAY
Between
ReginaRespondentKenneth Mark ShirleyAppellant
S O’Neill QC for AppellantWilliam Mousley QC for RespondentHearing Hearing date : 2 July 2013
JudgmentLord Chief Justice of England and Wales:
[1]On 27 September 2012 the appellant was convicted at the Crown Court at Bristol before the Honourable Sir Michael Astill, sitting as a Deputy Judge of the High Court, and a jury on 12 counts of sexual assault by penetration, four counts of rape and a count of unlawful wounding contrary to s.20 of the Offences against the Person Act. He was sentenced to life imprisonment for the offences of assault by penetration and rape with a minimum term of 16 years being imposed for the offences of rape and 10 years for the offences of assault by penetration. A concurrent sentence for unlawful wounding was also imposed. He appeals against conviction by leave of the Single Judge on the ground that the judge failed to sum up the defence case to the jury in a fair and balanced way.

The making of the complaint and the complaint

[2]It is necessary to begin by explaining how the complaint leading to the proceedings came to be made.[3]The complainant, J, who, as we explain at paragraphs 19 and following had suffered from depression, suffered a nervous breakdown in September 2008. As part of her treatment she was seen by a clinical psychologist, Dr Dos Santos from October 2008. In early March 2009, in answer to a question from that psychologist asking her if she had been raped, she said she had been raped by a stranger who had followed her home. On 18 March 2009, she told Julie Blake, a community psychiatric nurse that she had been raped by a stranger in her home. Between that time and January 2011 J gave accounts of the attack to Dr Dos Santos, Julie Blake, Dr Grzegorak, a consultant psychiatrist, Mr Sherrington, a psychotherapist, and Dr Cybulska, a sexual health consultant.[4]In January 2011 J spoke to the police. She informed a detective constable that she had been raped by a stranger in her home in 2005. After an initial refusal to be formally interviewed, she agreed to be interviewed on video on 20 May 2011 and was again interviewed in August 2011. It will be necessary to refer briefly to the differences in the accounts given.[5]The account, as it emerged, can be summarised as follows. i) J was a highly qualified occupational therapist. In mid-November 2005 she was about to start work at the Fromeside Forensic Unit, a semi-secure psychiatric hospital near Bristol. She was taking anti-depressant medication. ii) She shared a converted barn with a childhood friend called L on the outskirts of Frampton Cotterell, a village just north of Bristol and two miles from Chipping Sodbury. iii) In November 2005 J and L went to the Pitcher and Piano, a bar in the Waterfront area of Bristol. There they had met a man of whom they gave a description. He had introduced himself as Mark. There was a discussion about L being away for a weekend in three weeks time, about where they lived and about how to get there. The man mentioned that he had been in the army. J reacted rudely and aggressively. She explained that that was because she hated men in the army as a result of a sexual assault that had occurred when she was between the ages of seven and 11. She became uncomfortable when she thought he was attracted to her. J subsequently identified the man whom they had met at the bar in Bristol, as we set out at paragraph 7 below, as the appellant. iv) Three weeks later on a Saturday afternoon she was alone at home. L was away at her work as had been explained to the man in the bar in Bristol. At about 4.30 p.m. a white van pulled up outside the house. The man who got out was wearing a balaclava. He forced his way into the house by using an unlocked door. J was then subjected to a brutal and sustained violent sexual attack lasting a period of 12 hours. Over that period the complainant’s vagina, anus and mouth were forcibly penetrated with the appellant’s fingers, tongue and penis. A knife was also used to penetrate her vagina and anus. A broken bottle was also used to penetrate her vagina. The appellant had stabbed her in the stomach and leg using the same knife. Whilst carrying out the attack he removed the balaclava and she recognised him as the man to whom she had spoken at the Piano and Pitcher; he told her his name was Mark. He told her that he had killed before and would return to kill her if she told anyone what had taken place. v) When L returned, J said nothing. She told no-one until March 2009 in the circumstances we have already described.

The evidence for the prosecution

[6]The prosecution’s case was based on the evidence of J which she gave over four days.

(i) Her identification of the appellant

[7]The first identification procedure was on 3 August 2011. On that occasion J became very distressed. Although the procedure was stopped because she became more and more distressed, she made clear that the person at number 3 (who was the appellant) was not the person. On 12 August 2011 there was another identification parade. On that occasion she identified the image of the appellant as the person who had attacked her. J had described him when she first went to the police as being 6 feet 4 inches high, chunky, fit, of heavy build but quite muscular. His appearance was of a slight natural tan, but was of British white origin with a south-west country accent. He had a shaven head and his hair would be brown, his eyes green, his eyebrows thick and heavy. He had lots of hairs on his arms and chest. (ii). The appellant’s use of the name “Mark” and his connection with the army[8]As we have set out, J’s account was that the person whom she met in the bar in Bristol had used the name Mark and had said he had been in the army. The appellant accepted that he called himself by his second name, Mark, and he told people that he had been in the army, although he had never been in the army. There was also evidence from the appellant’s friend, Mark Cook, to the effect that he went out a number of times in Bristol. (iii). The appellant’s proximity to J’s home and his access to a white van[9]He lived about 20 minutes or so away from where J lived. He had accepted that he knew where the village that she lived was. He also had accepted that he frequented Bristol city centre in November 2005.[10]At the time he was employed by Sainsburys at Fulton, Bristol. There was evidence from the Human Resources Manager and Retail Assistant Manager at that store about access to a white transit van; that evidence was of a tenuous nature. There was also evidence that he did not work on Saturdays which was the day on which J said the attack took place. (iv). The appellant’s previous convictions[11]Much the most powerful piece of supporting evidence relied upon by the Crown were two convictions of the appellant. i) The first was a conviction in 1987 of the murder of MW. At the time the appellant had been 16. MW had been 67 and lived alone. The evidence of that murder was admitted on the basis of considerable similarity. There was a sexual element to her killing. There was evidence of penetration of her vagina; she was naked when she was found. Blood had been smeared on her body and her face was covered. A knife and a coin had been placed on the body. The appellant was released on licence from his sentence of life imprisonment for that offence in 2004. ii) The second was a conviction for a serious sexual attack on X. On 20 March 2009 X was the victim of that attack in her home. The appellant was arrested in early April 2009 for rape, sexual assault and false imprisonment. He was tried in Bristol in November 2009 and convicted of all the counts with which he was charged. He was sentenced to life imprisonment. During the trial, there was a great deal of publicity in relation to the attack and the appellant’s photograph appeared many times in the media. That conviction was admitted on the basis that there were again material similarities. X was raped and sexually assaulted in her own home; a knife was used; a knife was put into her vagina and anus. The appellant smelt her body. The appellant referred to her as Mary. He drank tea and coffee while in her home. He said he would kill her if she told anyone. (iv). Other evidence[12]There was no forensic evidence which supported J’s allegations; there was no independent identification by L.

The approach of the defence

(i) The arrest, statements and interview of the appellant

[13]The appellant was arrested on 27 July 2011 as a result of apparent similarities between the matters of which he had been convicted and J’s account of the attack on her.[14]He provided at his first interview a prepared statement in which he denied attacking J or ever going to Frampton Cotterell. He stated that he and a friend had been stopped by the police in the Waterfront area of Bristol and that could have been in 2005. He denied driving or having access to a van or car; he said the only vehicle he could drive was a motorcycle for which he had a provisional licence. At his second interview, he denied he had assaulted J; he said he was with his girlfriend at the time of the alleged attack on J.[15]Although he had said in his statement that he was living in a bail hostel, he accepted that he wasn’t sure and later agreed that he had moved into a flat at Lockleaze a few weeks before December 2005. He said he had not gone to the Pitcher and Piano the night after he was stopped on the Waterfront. He would have been at his flat in Lockleaze with his girlfriend.[16]The appellant did not give evidence. The approach taken on his behalf was that as he denied the attack, there was nothing he could say beyond what he had already said in his interview and statement.[17]The way in which the defence therefore was put was to question the credibility and reliability of J as to whether the attack had taken place and, if it had, to undermine the evidence that she had given connecting the appellant with the attack and her identification of him.[18]The challenge was made on a number of bases. (ii). J’s depressive illnesses[19]It is clear that J had suffered from significant depressive illness since 2002. She gave detailed evidence in relation to that. It was contended on behalf of the appellant that her evidence showed she had stopped working in 2004 and only restarted shortly before the attack because of her depressive illness; the Crown contended that the evidence showed that, although she was depressed, there was a reason for this and her time off work was due to selling her artwork.[20]There was evidence of the relationship between her obesity and her illness. She was about 16 stone in December 2005 and had subsequently lost a significant amount of weight. There was a dispute about the reliability and credibility of her evidence as to why she had gained weight and why she had lost it.[21]There was no doubt she had suffered a serious breakdown in her mental health in 2008. It was the Crown’s case that this had happened as a result of the attack in 2005 and subsequent PTSD. There was evidence, however, from Dr Sandford, a consultant psychiatrist called on behalf of the Crown, that there were two possible explanations for her condition – either(i) PTSD caused by an overwhelming life event and her recollections were flashbacks, being genuine recollections or(ii) a psychosis, a severe mental illness which caused people to hallucinate, such hallucinations sometimes being based on things that had actually happened. He gave his view as to the possibilities. (iii). Inconsistencies in her evidence[22]Inconsistencies in her evidence in relation to the sexual abuse that she said she had suffered between the ages of seven and 11 were raised. Records disclosed she had told Julie Blake that her father was complicit in the sexual abuse; her evidence was that she had only told Julie Blake, a community psychiatric nurse, that her father had paid the man for swimming lessons, not that her father had received money from her abuser.[23]Inconsistencies about her evidence in relation to what had happened in relation to the attack she said had been made on her in 2005 by the appellant were also put to her. i) In her evidence J initially denied stabbing herself in the stomach, denied cutting a cross onto her leg and denied cutting her wrist. She eventually agreed she had stabbed and cut herself as was set out in the medical notes but said she did so because she was copying injuries the attacker had inflicted on her. ii) Notes made by Julie Blake and the psychologist recorded that she was “keen” on the man in the bar and was “up for it”. She said that, “up for it” meant up for a good night. She denied being in any way attracted to the man. iii) In her interview in May 2011 she had said that at no time had the attacker pierced her skin and that there were no scars on her body. She did not say that she had been stabbed in the stomach. iv) There was a dispute between the Crown and the defence as to whether what she had said in her evidence had amounted to an explanation. v) In September 2011 she had sent information to the police about a male attacking women. She said in her e-mail to the police that it had been sent to her by an unknown source, but she had in fact downloaded the information from the internet.[24]It was contended on the appellant’s behalf that the probability was that she had learnt a great deal about the attack on X during the trial in November 2009 and the details had been incorporated by J into the allegations made against the appellant. It was J’s evidence that she had given the details prior to that time; that she had no knowledge of any of this publicity, knew nothing of either the X or MW cases and had never seen any photograph of the appellant.[25]Although the Crown accepted there were some inconsistencies in the account, it was an account that was truthful and inconsistencies in such a case were not unusual. This was a matter for the jury’s assessment of J. She had in fact given explanations of some of the matters of which the appellant complained. (iv). Improbabilities in J’s account of the attack[26]A number of points were made on the appellant’s behalf about the improbability of the account given by J as to the attack. These included: i) There was no evidence that any of the neighbours saw a man in a balaclava. ii) There were at least two occasions when J could have escaped. iii) There were occasions when she could have ‘phoned the police but did not do so. iv) She washed the blood and semen stained duvet cover after the incident and continued to use it. v) She washed and continued to wear the trousers she was wearing during the attack. vi) L did not notice on her return home after a few hours after the attack that J had been stabbed in the stomach. vii) The vaginal and anal injuries bled but she said she treated them with Vaseline. viii) She never discussed the incident with L although she wrote notes about it and asked L to keep them.

The basis of the appeal

[27]Miss O’Neill QC on the appellant’s behalf contended that he was under a very substantial handicap as the appellant had been first asked about what was alleged to have happened in November 2005 on his arrest in July 2011. In addition to that handicap, there was the overwhelming prejudice of his two previous convictions for murder and for sexual assault. It was therefore submitted that it was incumbent upon the judge to have approached the task of summing up in a fair and balanced manner. He had not done this and had not put the defence case fairly.[28]In the course of the hearing before us we gave leave to Miss O’Neill QC to add an additional ground of appeal on the basis that the judge had misdirected the jury in relation to how the jury should approach what the appellant had said in his interview.

The directions of law in relation to the appellant’s statement and interview

[29]As we have observed, there was no criticism of the directions given by the judge until the argument was advanced before us as to the way in which the judge had directed the jury on the use that they might make of what he had said in his statement and his interview.[30]The judge had directed the jury in the following way. i) The appellant had a right not to give evidence. His silence did not prove the case against him. ii) His silence was, however, relevant to the jury’s consideration of the case in two ways:
“First there is no evidence before you capable of contradicting, undermining or explaining the evidence for the prosecution. Although what he said in the prepared statement and in the second interview is evidence of his reaction when challenged by the police, it is not capable of being evidence that he was elsewhere at the time of the attack that J describes. It is simply an assertion made by him on an occasion when he was not giving evidence. It is not evidence because he did not say it in this court from the witness box as evidence. Second, his decision not to give evidence might, depending on the view taken, add weight to the prosecution’s case.”
The judge then referred to Miss O’Neill QC’s submission in which she had explained the reason why the defendant had not given evidence and why that should not be held against him. He continued:
“How do you deal with that? The first thing to say about that is that none of what Miss O’Neill [says] is supported by evidence and counsel in a criminal trial cannot advance reasons for a defendant’s decision not to give evidence, reasons that are unsupported by evidence … There is no evidence before you to demonstrate how he would have reacted and what would have been asked for the simple reason that he decided not to give evidence. That is the first thing to say about the reason not to give evidence. The second is this: Miss O’Neill’s argument inevitably makes an assumption that what the defendant asserted in the prepared statement in the second interview, that is of course that he was not the man is true; that is the assumption behind what Miss O’Neill said to you, but that is the very question which you have to decide, whether the defendant was the man who attacked J, if she was attacked. The defendant could if he had wished given evidence that he was not present and if he had given that evidence, what he had said would have been exposing to probing, to cross-examination by [counsel for the prosecution]”
It was therefore open to the jury to reach a conclusion that was adverse to his case from his decision not to give evidence, but that was only a conclusion they should reach if they concluded the prosecution case was sufficiently strong to require an answer from him.[31]Much later in the summing up, when he summarised what was said in the interview,

the judge then said:

“I have already told you that what he said in those statements is not evidence in the case. It is not evidence given in court. I have explained that. There is no need for me to explain it again.”
[32]It was submitted by Miss O’Neill that the jury should have been told that the interview was part of the evidence in the case but they should bear in mind that the evidence had not been given on oath or tested in cross-examination.[33]Miss O’Neill submitted that the misdirection on its own was significant when combined with the judge’s failure to sum up the defence case fairly, particularly by identifying inconsistencies in J’s evidence and other features of the evidence which undermined J’s reliability and credibility.[34]The principles in relation to a mixed statement, that is to say a statement that is partly inculpatory and partly exculpatory are clear: see R v Sharp [1988] 1 WLR 7, 86 Cr App R 274 and R v Aziz [1996] 1 AC 41; the clearest statement of the principle is in R v Duncan (1981) 73 Cr App R 359, where Lord Lane CJ said at page 365:
“Where a “mixed” statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.”
[35]But, as this court made clear in R v Garrod [1997] Crim LR 445, just because a statement contained matters that might amount to an admission, that did not make the statement a mixed statement for this purpose. For the reasons this court explained in its judgment in Garrod, a statement could not be treated as a mixed statement unless the admissions or inculpatory parts were significant in relation to the prosecution case as it was conducted at trial: see R v Papworth and Doyle [2008] 1 Cr App R 36.[36]In the present case, the prosecution relied only upon very limited admissions – he admitted he told people that he had been in the army and that he used the name “Mark”. In our judgment these statements were not significant in relation to the prosecution case; they had to be seen in the context of the meeting at the Pitcher and Piano and his denial that he ever went there. It was therefore open to the judge to conclude that these were not significant; the statement was therefore not a mixed statement. The judge was right on this basis in directing the jury that it was not evidence.

The fairness of the summing up

[37]The judge put at the forefront of his summing up clear directions as to the way in which the jury should treat the delay that had occurred and the effect it could have on J’s reliability. He also directed the jury on the difficulty faced by the appellant in responding to allegations first made against him over 5 years after the alleged offences.[38]He made clear the nature of the defence when summarising the evidence. He concluded after summarising the prosecution case by saying:
“On the contrary, Miss O’Neill for the defendant urges you to conclude that J is not reliable, certainly not to the extent that you can be sure that she is telling the truth. That being so, says Miss O’Neill, the defendant’s previous history, previous convictions and the detail of them have no relevance whatsoever to you considerations. If she is not to be believed to the extent of making you sure, which is the duty of the prosecution, then nothing else matters.”
[39]Miss O’Neill contends that the judge should have identified the inconsistencies in J’s evidence which might have affected her reliability and credibility; the judge had only mentioned some in the briefest manner. It mattered not that the appellant had not given evidence; the judge was under a duty to point out the points that showed J’s unreliability.[40]In very careful submissions in response, Mr William Mousley QC set out in detail the points that the judge had made in his summary of the evidence that the defence had made showing the unreliability of J.[41]It is clear from a detailed analysis of the summary of the evidence that the judge did draw attention to substantially all of the points that could be made on the appellant’s behalf and which went to undermine the reliability of J. There were some he did not; for example in his treatment of the evidence in relation to the white van, he did not deal as fully as he should with the parts that were in the appellant’s favour. However, as is apparent from the passage we have set out at paragraph 38, the judge did not marshal in one place the points that could be made either for the prosecution or the defence.[42]The summing up occupied a little more than the morning of 26 September 2012, as the jury retired at 14:04. The jury had heard the speech on behalf of the appellant on the afternoon of the previous day. Although this was a case where the appellant faced the immensely prejudicial weight of his previous convictions and was handicapped by the delay, we do not consider that the judge was bound to set out all the points that could be made on behalf of the appellant in one place. He drew attention to them as he reviewed the evidence. That was in our view, in all the circumstances, a course reasonably open to the judge, though other judges may have summarised the defence case much more fully in the way suggested by Miss O’Neill. As the summing up was short and followed immediately on the defence speech, which would have been most cogently presented by Miss O’Neill, we cannot conclude that the summing up was unfair or unbalanced because it did not contain such a summary. Read and understood as a whole it was both fair and balanced.

Conclusion

[43]We have carefully reviewed the evidence in the case. The evidence of J was tested over the course of 4 days; the jury had ample opportunity to assess her credibility and reliability. There was other evidence that lent support to her account. We are in the circumstances satisfied that there was sufficient evidence for the jury to conclude that she was a reliable witness and to accept her evidence. The two grounds on which the appeal was advanced do not succeed. The conviction is therefore safe. The appeal is dismissed.