Xie v The Crown [2014] EWCA Crim 715

[2014] EWCA Crim 715Case No 201302197 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
His Honour Judge Testar
T20087315
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/04/2014
Before
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION(SIR BRIAN LEVESON)ME JUSTICE WILKIEMRS JUSTICE LANG DBE
Between
JAIN HUA XIEAppellantTHE CROWNRespondent
Mr Roger Daniells-Smith for AppellantMiss Isobel Ascherson for RespondentHearing Hearing dates : 3 April 2014
JudgmentSir Brian Leveson P :
[1]On 29 October 2008, in the Crown Court at Southwark before His Honour Judge Testar and a jury, the appellant, then about 45 years of age, was convicted of the rape of TL, a school girl who was then 15 years old. He was sentenced to 10 years’ imprisonment less time spent on remand. Following conviction, an unsuccessful appeal was mounted to this court: see [2010] EWCA Crim 912. Thereafter, the conviction was referred to the Criminal Cases Review Commission (CCRC) who, based upon new medical evidence; which is said to raise concerns about the adequacy of the medical evidence at trial, referred the conviction back to this court on the basis of its conclusion that a further appeal stands a real prospect of success.[2]In the light of the circumstances, it is necessary to examine the facts in some detail. TL and the appellant are both Chinese nationals. The appellant was introduced to her and her family through a mutual friend and agreed to assist in arranging a study placement for her in the UK. He obtained a visa for her and put her in contact with two guardians. On 12 January 2008, TL arrived in the UK to commence full time education at a boarding school in the south of England.[3]The school half-term holiday commenced on 8 February and TL and her friend HZ stayed with host families. On 11 February 2008, the appellant made contact with TL for the first time; he invited her to attend a special programme for overseas students in Westminster being held on the following day. Both girls were taken to London by their hosts and spent a day sightseeing and attending the event. TL spoke only briefly with the appellant because he was busy. This was their first meeting.[4]The next day, 13 February, the appellant again phoned TL and invited her to London so that he could speak with her. She arrived in China Town at 3.30 pm and waited outside the Royal Dragon restaurant as agreed. He telephoned her about forty minutes later and several times thereafter, apologising that he had been delayed. He eventually arrived at 7.40 pm and they ate a meal in the restaurant. What follows is TL’s account in evidence.[5]During the meal the appellant said that he had bought some clothing which he went to collect, returning twenty minutes later with a “DKNY” carrier bag. He then asked her to come with him so they could discuss her education. They left the restaurant at 8.20 pm. TL believed that they would talk in an office but the appellant took her to his bedroom on the fifth floor of the nearby hotel in which he was staying. He removed a black dress from the carrier bag and told her to put it on, which she did. He then lay on the bed and asked her to stand on the bed and move so that he could see the dress. He commented upon her body shape and said she needed to lose some weight.[6]They sat on the bed and talked about China. During the evening she received a text message from her host family and then a phone call inquiring when she would be home. The appellant advised her to say she was already in bed, that her father’s friend had driven her to a hotel and left her there. This explanation was accepted but she was told to return the following morning. Ten minutes later, the complainant’s guardian called, concerned and asking where she was. Again the appellant advised her to say that she did not know but that her father’s friend, who she had met before, had driven her there. The appellant and TL continued to talk.[7]At about 10 pm the appellant received a phone call during the course of which he removed his top. TL said she ought to leave and catch her last train but he told her to fetch a bottle of tablets from the table. He said they were cod liver oil tablets for good health and persuaded her to take one. He also purported to take one.[8]After about 30 minutes TL described feeling dizzy and weak. They continued talking and the appellant looked at her palms and said it was their fate to be together. He became emotional and told her to “hold him and kiss him”. He kissed her hard on the lips so she pushed him away. The appellant turned off the light and told her to lie next to him on the bed. She complied because she was so tired.[9]TL then said that he removed her clothing and jumped on top of her, kissing her, touching her vagina then penetrating her with his penis; this caused her pain. She told him “You can’t do this, no” and pushed him away but he got back on top of her and continued. He did not use a condom and there was a towel underneath her on the bed. She did not know if he had ejaculated but there was sticky liquid on the towel and between her legs. She was a virgin before this incident and was also menstruating.[10]TL woke the next morning and showered. The appellant told her, a friend of his, a solicitor, would be coming to the hotel so she should wait downstairs and be polite. They had breakfast and afterwards the appellant withdrew £500 from a service till and gave it to her: this had been agreed by her parents who later repaid him. Thereafter, TL returned to the home of her host family. The appellant told her that, if anyone asked, she was to say she had stayed at the solicitor’s house.[11]In cross-examination it was suggested that TL had fabricated this account to cover the fact she had engaged in sexual intercourse with a boy to whom we shall refer as J and also because the appellant had told her to stop her relationship with J. She agreed that J also studied at her school and that she had developed a close relationship with him as well as other students. It was suggested she had been in trouble at school for staying out overnight with boys and that her father had asked the appellant to talk to her about this. TL denied that she had stayed out overnight with J. When her teachers spoke with her, it was not about J but about the fact she had fallen out with another girl at the school. In the hotel, the appellant did not talk to her about any concerns her parents had about her behaviour but he had said she should concentrate on studying and not have relationships with boys.[12]In relation to the various phone calls from her host family and her guardian, she had answered according to the appellant’s instructions. She denied that the dress was given her to use as a nightgown because she had missed her last train. He had bought it as a formal dress for her and asked her to put it on as soon as they arrived in the room.[13]She agreed she had been to a nightclub once whilst in England with school friends, including J, but had not seen or taken any tablets there. She denied that during the course of the evening she received any phone calls from J. She could not recall if she had sent him a text message during the afternoon of 13 February. She was shown a draft of a text message on her phone but could not recall if this was for J. She confirmed that J was seen with her in a photograph on her phone: the photograph was dated 18 February.[14]TL agreed she had not mentioned the incident to anyone until her mother arrived in the UK on 22 February; she said that it was because it was “very sickening”.[15]It was suggested she had arrived back at school very late on 17 February with J and other boys and that her teachers were concerned. She accepted she had been out that evening and had fallen out with her girlfriends, so had waited for the boys to finish a game of snooker before returning with them to school. She did not agree with the suggestion that, in March 2008, she had been discovered alone with J in a small room containing a bed. She denied that she had sexual intercourse with J.[16]TL spoke to her parents and asked them to come to the UK, which they did on 22 February. Her mother thought it was 15 February when TL first called and made this request. She described her daughter as very stressed and crying. When her parents arrived, TL told them what had happened. It was not suggested that her account to her parents differed to the account she gave in evidence. The parents then contacted the Chinese Embassy, who in turn notified the police. The appellant was arrested as he landed at Heathrow airport on 25 May 2008. When the allegation was put he replied, “That’s impossible”. In interview he gave a full account which was generally consistent with his evidence.[17]Due to the passage of time TL was not medically examined when she made the initial complaint to the police. However, at a much later stage, after she returned to this country shortly before trial, she was examined by Dr Victoria Aziz. This evidence was disclosed only just before the trial but although an application was made to adjourn for other reasons, no application was made by the defence in respect of the late medical evidence. In the main, it was said to be non-contentious and, indeed, the validity of the medical conclusions were not challenged, not least because those conclusions were not inconsistent with the case that the appellant was mounting and, furthermore, could be used as a basis for mounting an argument to permit cross examination about TL’s sexual conduct.[18]Dr Aziz reported that TL had told her that she had not had sexual intercourse either before or after the incident with the appellant. TL also told Dr Aziz that she used sanitary pads, never tampons; both she and her mother both said that she had suffered no accident which might have ruptured her hymen. Upon examination, Dr Aziz found evidence that the hymen had been penetrated. The damage was consistent with that caused by sexual intercourse: in circumstances to which we refer below, Dr Aziz also used the words “diagnostic” and agreed with the judge’s word “conclusive”. It was not possible to say whether there had been more than one penetration: TL’s complaint that she felt pain after the incident was consistent with the hymen being damaged for the first time. For the sake of completeness, it is appropriate to add that a second expert, Dr Gayle Cooper, tested a section of the complainant’s hair for drugs (because of the tablet she said she had been given), but with negative result.[19]Turning to the defence case, the appellant said that the allegation was a complete fabrication: TL had lied. The appellant was involved in Chinese cultural affairs, a highly regarded businessman of good character. He was invited by more than one organisation to come to the UK during February, in connection with the Olympics. Part of his voluntary work involved arranging placements for Chinese children to study in the UK and this was how he came to be helping the complainant and her family.[20]With regard to the events on 12 February, he said that he invited about ten students, including TL and her friend, to Westminster Central Hall. He had been informed by her father and her school that she was having difficulties and falling in love with a boyfriend. He hoped to talk to her about it on that day, but there was no real opportunity other than to say hello.[21]He telephoned her the next day and said her father had asked him to speak with her. It was arranged that she should come to London and wait in China Town. He was delayed in Oxford but eventually met her in the Royal Dragon restaurant. He did not leave her or go to collect any shopping but he did have some shopping with him from Oxford which included the dress which he had bought for the TL’s guardian. He commented that it was not suitable for a child.[22]At the restaurant, he spoke to her about the boy but she was constantly sending texts. Later, he realised her boyfriend was also in London. He took her to the hotel for three reasons: firstly her father had asked him to give her £1,000 and he had not had an opportunity of finding a bank, so he intended to present his passport at the hotel counter; secondly there had been problems during the half term holiday and he was concerned she was not being cared for. He wanted to contact his friend the solicitor, to see if he would give her alternative accommodation. Thirdly, it was too noisy and inappropriate to talk in the restaurant.[23]He agreed to let her stay in his hotel room because he knew he would be busy working on his computer; he could not afford a separate room for her. He denied asking her to put the dress on or parade in front of him. They spoke about her childhood and he told her to concentrate on her studies rather than boys. She told him that no men were good and that her father had sent her for piano lessons when she was young and her teachers had touched her. He commented about the lines on her palms in relation to her character.[24]He agreed that he had told the complainant what to say when her guardian phoned. This was because he knew it was inappropriate for her to be in his hotel bedroom. On the other hand, he intended to be working on his computer so she would have the bed to herself and it was already late. He changed into his pyjamas when they got to the room. She was watching television. She wanted to have a shower and said she needed something fresh to put on, so he gave her the dress (which he had acquired for someone else), thinking she could use it as pyjamas. He did not give her any pills although he took some medication himself for high cholesterol.[25]Whilst he was working on his computer, the complainant continued to sit on his bed and watch television. He did not take her clothes off and certainly did not touch her vagina. He denied he had penetrated her and added he would never have thought of having intercourse with a woman who was menstruating. In the morning he sent her down to breakfast and joined her later. He sent her to reception to meet Mr Tang. He withdrew £500 from the bank which her mother had since repaid. After she had gone he phoned her father in Beijing to say he thought their discussion about boys had been a success. He had no idea she had made allegations against him until the police arrested him.[26]TL’s guardian also gave evidence. She became concerned that the complainant was getting into trouble and not obeying the rules. She prepared a report about the complainant’s behaviour which included that she thought she was too close to the boy, J. She confirmed that the appellant sometimes gave her presents including clothing. A 14-year-old student at the school also gave evidence that the complainant and J appeared to be romantically involved.[27]It is important to say something about the first appeal. This arose principally out of the unavailability of J (who had apparently returned to China) and the failure to get his telephone records. A week before the trial was due to commence, the prosecution had applied for an adjournment to seek to obtain J’s evidence to counter defence suggestions that she had in fact been sexually involved with J at the material time. The defence were ‘equivocal’ as to this application, but once it was refused and the appellant convicted, appealed on the basis that J’s evidence could have been determinative. Not surprisingly, this ground of appeal was rejected.[28]The appellant also appealed in relation to the restrictions placed by the judge on the scope of cross-examination that was permitted concerning TL’s relationship with J, and the reasons behind her expulsion from school. This court not only rejected this ground of appeal, but expressed some surprise at the extent to which the judge had permitted cross-examination of TL which it must be underlined was, to some extent, permitted in order to allow the appellant to deal with the medical evidence.[29]Further grounds of appeal concerned complaints about the adequacy of the counsel for the defence at trial (who was not Mr Daniells-Smith), the failure to call the toxicology expert and the judge’s decision to admit the expert evidence of Dr Aziz. The court noted that the jury had been sure that the appellant had raped the complainant on the night in question, and held that it was entitled to come to that view having heard both parties cross-examined, and on the basis of the circumstantial evidence admitted by the appellant. The court concluded: “We do not consider the peripheral issue relating to J would have affected the jury’s decision, even if more evidence about him, which we doubt, had been available. We consider that the arguments relating to telephone evidence and toxicology evidence are peripheral. Accordingly this application is dismissed”.[30]We turn now to the present Reference, which is based on what is said to be the inadequacy of the medical evidence given at trial by Dr Aziz, on behalf of the Crown. Dr Aziz is a medical practitioner who has been a general practitioner since 1986: she has been a Sexual Offences and Child Abuse Examiner for the Metropolitan Police since 1991. Her CV indicates that she has examined over 4,600 complainants of sexual offences.[31]The CCRC instructed Dr Mary Pillai to review the evidence of Dr Aziz. Dr Pillai is a consultant obstetrician and gynaecologist and also a Forensic Medical Examiner specialising in sexual offences. She was instructed to review Dr Aziz’s evidence in light of the current state of expert knowledge and academic research, and prosecutorial guidance. She was also asked to assess whether the examination had been conducted in line with best-practice guidelines.[32]There have been exchanges of the new medical evidence and both doctors have had the opportunity to comment on the reports of the other. Both attended court and we anticipated that applications would be made that they should give oral evidence. In the event, both sides were content that we rely on the written reports (which identify the issues between them and the very large extent to which they have narrowed). In particular, we allowed Mr Roger Daniells-Smith for the appellant time to re-consider the question whether he wished us to hear live evidence but he maintained his position. In the circumstances, we admitted the statements of both witnesses de bene esse.[33]In order to deal with the grounds upon which this Reference has been made, it is necessary to examine the evidence of Dr Aziz in greater detail, relying not only on her original statement but also the further evidence that she has provided in response to the concerns raised by Dr Pillai.[34]Dr Aziz conducted her examination on 17 October 2008 when TL returned from China to give evidence. This was some 8 months after the complaint had first been made and only days before the trial was due to commence. Her witness statement is dated the following day. The examination took place at Dr Aziz’s surgery, with a police officer, an interpreter, and the complainant’s mother also in attendance.[35]As to past medical history, Dr Aziz records in her statement (it now being clear that this was based on information provided by TL and her mother: “She [the complainant] only uses sanitary pads for her menstrual hygiene. She is not sexually active (neither before nor after the alleged assault). There was no history of digital penetration or penetration by any other object”.[36]Under the heading ‘Genital Examination’, the clitoris, urethral orifice, labia major and minor and posterior fourchette were all said to be ‘normal’. The examination, insofar as it is relevant, went on to say: “The hymen revealed a crescentic shape. At 10 o’clock there was a cleft – partial deficit/indentation. At 7 o’clock posterior, there was a full thickness transection (healed tear) – deep, wide “U” shaped deficit in the hymen”.[37]Finally, under the heading ‘Opinion’, Dr Aziz remarked:
“(a) The full thickness, deep, wide transection of the hymen at 7 o’clock posteriorly is diagnostic of blunt force peno-vaginal penetration. Transection is healed tear/laceration, leaving the hymenal rim with a defecit of tissue. Once the tear is healed, it is not possible to date the injury. (b) A cleft at 10 o’clock anteriorly is also a defect/indentation on the hymenal rim. At this position, a cleft has been seen in non-abused children. A cleft may result from blunt force trauma but once it has healed it is not possible to differentiate the cause. (c) The history of pain during the alleged peno-vaginal penetration and complaint of a burning sensation on the following two days during urination (as urine passes over the open tear) is supportive of penetrative intercourse causing the hymenal tear.”
[38]A small, hand-drawn diagram of the genitalia was included as an appendix. Dr Aziz gave oral testimony at trial on 22 October 2012, only five days after having conducted her examination. We repeat that the defence did not seek to adjourn the trial for expert review of her evidence and told the Court that most of what was said was ‘not contentious’. She used a plastic cup to demonstrate to the jury the position of the healed tears, with the base being the hymen.[39]Dr Aziz told the Court that TL had told her (as part of the medical history) that she had never had sexual intercourse before or since the alleged rape, that there had been no other incident where an object entered her vagina, and that she only used sanitary towels and ‘… never used tampons’. This evidence was not challenged in cross-examination although we recognise that it is difficult to see how it could have been.[40]As to the two healed tears in the hymenal rim, it is not in dispute that the 10 o’clock cleft can be naturally occurring. The difference of opinion that has now arisen between the experts, Dr Aziz and the expert now instructed by the CCRC, Dr Mary Pillai, concerns the lower transection of the hymen at 7 o’clock.[41]According to Dr Aziz, any object which for the first time penetrates the hymen tends (because of the anterior pubic bone) to cause lacerations or tears in the posterior of the hymen, between 3 o’clock and 9 o’clock. She told the jury that she had observed such an injury to the complainant’s hymen at 7 o’clock which: “… is quite wide because it can be like V shaped. It can be like U shaped, depend how widely it is torn. This is quite wide. And that is what we call full thickness transection caused by blunt force trauma with penetrative sex, penetration by erect adult penis, sex toy, whatever, caused this stretching, overstretching and tear”.[42]When Miss Isobel Ascherson, for the Crown, summarised that there had been penetration by something, Dr Aziz emphasised:
“This is diagnostic. This is actually one of the few things. It is diagnostic of penetrative sex, penetrative injury”
. When the judge asked her “Do you mean by diagnostic that it is conclusive?” to which Dr Aziz answered “Absolutely”. It is worth commenting that the judge’s question was both leading and sought to compare a medical term with a term of art used by lawyers.[43]Dr Aziz went on to contrast the 10 o’clock hymenal cleft, which could be naturally occurring in non-abused children, and the 7 o’clock full transection:
“All literature, abroad and in the UK, it is conclusive that any full thickness transection between 9.00 and 3.00 [sic] is diagnostic. Never seen in any non-abuse children or normal variation of the hymen”
. Finally, in response to questions from counsel, she agreed, as far as she was concerned as a doctor, this was diagnostic proof of penetration. She also agreed with the proposition that it was a consequence of sexual activity.[44]Dr Pillai’s first report was dated 10 June 2011. While finding the method of examination appropriate and sufficiently detailed, she identified certain deficiencies of detail. There was no detail as to how TL had consented to examination, nor about whether the complainant was seen without the presence of her mother when questions about her sexual activity were asked. Dr Pillai also criticised the lack of photo-documentation, or any explanation for its absence (such as the refusal of consent for photography). She considered the clarity of the appended diagram to be inadequate and observed that “the area representing the hymen very poorly illustrated”.[45]These issues have since broadly been resolved and none are relevant to the determination of this application. The main substance of Dr Pillai’s criticisms, however, concerned the conduct of the examination (particularly the inquiry into prior non-sexual penetrative injury) and the force of Dr Aziz’s conclusions as to whether posterior full hymenal transections were ‘diagnostic’ of sexual penetration in women under the age of 16. We return to this issue later.[46]In her report dealing with Dr Pillai’s concerns, Dr Aziz confirmed that TL’s medical history had been provided by her mother, especially in relation to injuries, hospital attendance or admission. The only relevant matter was chicken pox. Dr Aziz then asked the mother and the police officer to leave her to speak to TL (through the interpreter) alone. This gave TL the chance to give information she might have sought to keep from her mother. She also rebutted the criticisms of her other conclusions. To this report, Dr Pillai issued a short rejoinder setting out her settled position.[47]Given the agreement between the experts that the 10 o’clock hymenal cleft could be naturally occurring, the main issue between them concerned the likelihood of there being a non-sexual explanation for the observed 7 o’clock full hymenal transection. This requires detailed consideration. Thus, in her initial report, Dr Pillai Report said: “Additional information that might be relevant, in view of the finding of a hymen transection, is whether [the complainant] had ever attempted use of a tampon but hurt herself and therefore only used pads. Dr Aziz’s report states that there was no history of any digital or object penetration but I am unclear whether this was with reference to the alleged episode or during her lifetime. During the examination-in-chief Dr Aziz stated [the complainant] confirmed there had been no other episode where any object had entered her vagina. This information was not included in her report, but also this is not quite the same as asking whether [the complainant] had ever tried and failed to insert a tampon. It is also not clear from the history stated whether the possibility of any past injury to the genital region earlier in childhood was explored with [the complainant] and her mother”.[48]Considering the accuracy of the conclusions that Dr Aziz had expressed in parts of her witness statement, Dr Pillai went on that Dr Aziz appeared to have extrapolated from pre-pubertal research even though the complainant was post-puberty, and observed that: “Transections have been documented in cases of accidental injury to the hymen, so it is not correct to say that they can only occur with abuse”.[49]Dr Pillai then considered the academic literature on this issue. She identified the only two available studies comparing sexually active adolescent girls to those who had never been sexually active. The first, from 1994 but which precluded peer review by those blind to the histories, studied 300 girls for deep hymenal clefts. Such clefts (not necessarily ‘abnormal’ transections as in the present case) were found in: 5% of the 100 who were virgins who had never used tampons; 11% of the 100 tampon-using virgins; and 81% of the 100 who were sexually active.[50]The second study from 2004 used photo-documentation and blind peer review, (and so is more reliable) but had a much smaller sample size. 27 participants volunteered sexual activity (including penile penetration) and 58 participants self-reported as having never having experienced sexual activity. Of the first group of 27 girls, 48% (13 girls) had deep notches or clefts and of these 33% (9 girls) had a full thickness transection. Of the second group of 58 girls, only 3% (2 girls) had deep clefts, of whom one (1.7%) had a full thickness transection. Both these two girls reported a history of pain and difficulty on first attempt at tampon use.[51]Based upon these studies, Dr Pillai agreed that the full-thickness U-shaped transection at 7 o’clock was diagnostic of penetrating trauma. The difference between her and Dr Aziz was that she did not agree this could only be attributed to penetration of a sexual nature, although this would be a common attributable cause. She considered it was impossible to differentiate between sexual penetration (whether consensual or not) and accidental self-inflicted injury, such as an early attempt to put in a tampon.[52]Dr Pillai was also asked to comment on Dr Aziz’s answers about the finding of the 7 o’clock transection being ‘diagnostic’ and the contention that diagnostic meant ‘conclusive’. Dr Pillai said at that:
“The strength of this conclusion is unwarranted, as other possible causes have not been considered. The full thickness transection at 7 o’clock would be consistent with a past episode of penetrating injury. It is possible that an accidental injury, such as a fall onto or astride a penetrating object in prepubertal and pubertal girls could cause this type of injury, although this is uncommon. It has even been reported that motor vehicle injury to the lower abdomen of a child can also result in this type of injury (…) but this will be exceptionally rare. There is [sic] also data that deep clefts in the posterior hymen may be found in girls who experience a painful episode trying to use a tampon, but who have not experienced sexual activity.”
[53]Dr Aziz’s responseon these issues was straightforward. “I asked the complainant what she was using for her menstrual hygiene. She stated that she was using sanitary pads only, and had never used or attempted to use tampons. I wrote in my contemporaneous notes “No tampons”. To me it was clear that she had used pads only. This was confirmed when I asked about the insertion of any object”; “The complainant’s mother stated that there were no accidents in [the complainant’s] medical history. An accidental injury resulting in a full thickness transection would have bled and caused pain and would have warranted medical intervention”; “During my genital examination when I observed deficits at the 10 and 7 o’clock positions on the hymenal rim, I asked [the complainant] about digital penetration or the use of other object penetrations in the past and whether any bleeding was noted. She denied any past attempted or actual penetration, digital or with any other object, or any bleeding”.[54]Dr Aziz made it quite clear that in coming to her evidential conclusions, she relied on the medical history available to her, the stated absence of any prior digital or object penetration, the lack of prior sexual activity, the absence of any attempt at tampon usage, and the lack of any reported accident conforming to a type capable of causing a full transactional cleft at 7 o’clock.[55]Dr Pillai’s further report maintained limited criticism of Dr Aziz’s evidence (as are material to these issues) in the following terms: “The complainant denied any past attempted or actual penetration, digital or with any other object. This is not quite the same as specific enquiry whether a girl has ever attempted to insert a tampon. Some girls may not understand this to also include any attempt by them at tampon use, unless the question is specific that it also includes any attempt to use a tampon. However, on balance Dr Aziz has clarified to a degree that it is unlikely there was any past event that might account for the hymen transection;[56]Dr Pillai also discussed a study cited by Dr Aziz in her response that sexual penetration tends to lead to posterior transections (63% being between 5 and 7 o’clock). She remarked that many victims of sexual assault have no such injuries, and that posterior injuries may also be seen in the posterior fourchette, but that these can arise from consensual sexual activity and accidentally as well, and so it “… is therefore appropriate to call the hymen transection supportive of sexual penetration. I do not agree that it is appropriate to call it diagnostic or conclusive”;[57]Finally, Dr Pillai said:
“… Dr Aziz clarifies that her evidence that the observed defect was diagnostic of peno-vaginal penetration was on the basis of the history given to her by [the complainant] and the past medical history given by her mother. She considers that this was sufficient to exclude any previous injury to the hymen. I agree that accidental trauma is an unusual cause of hymen trauma, and that usually this would be a memorable event. However this does not prove the allegation and I do not agree it is ever appropriate to call this type of finding diagnostic. The forensic examiner was not present at the time and did not witness the alleged events. The truth or otherwise of an allegation is a matter for the court.”
[58]In the light of the evidence from Dr Pillai, the CCRC formed the view that an argument could be mounted that the conclusions reached by Dr Aziz were not accurate or justifiable. Dr Aziz gave evidence that the injury was characteristic of the damage caused to the lower hymen by first time peno-vaginal penetration and was diagnostic of penetrative sex. Research showed that such an injury was never seen in non-abused children. Dr Pillai’s opinion was that, whilst a full thickness hymenal transection was diagnostic of penetrative trauma, such an injury may result from other causes, such as accidental injury or attempted insertion of a tampon. It was therefore inappropriate to describe the injury as diagnostic of penetrative sex and incorrect to state that such an injury is never seen in non-abused children.[59]Moreover, Dr Pillai’s evidence (undisputed by Dr Aziz) was that first-time peno-vaginal penetration does not necessarily result in any injury to the hymen. Although Dr Aziz had subsequently clarified in her responses to the CCRC that she had based her conclusions, in part, upon TL’s medical and personal history and thus excluded other possible causes of the injury, this would not have been apparent to the jury at trial.[60]The CCRC concluded, in its Statement of Reasons:
“74. At trial, both prosecution and defence accepted that the medical evidence showed conclusively that sexual intercourse had taken place. The complainant denied the consequent defence suggestion that she had had sexual intercourse with someone other than Mr Xie. 75. The Commission considers that, in what was otherwise a case of one person’s word against another, independent and undisputed expert evidence that sexual intercourse had taken place was likely to have carried considerable weight in support of the complainant’s account. The jury’s acceptance of the principal evidence in the prosecution case may have been influenced by the apparently scientifically established fact that the complainant had lost her virginity. 76. The combined fresh evidence shows that the medical evidence at trial appears to have overstated the probative value of the complainant’s hymenal injury. The injury, in itself, is not capable of proving conclusively that sexual intercourse has taken place and cannot provide independent confirmation of that event. 77. The Commission considers that ... the verdict may have been based, in part, on unreliable medical evidence…”
[61]It is in those circumstances that Mr Daniells-Smith argued that the conviction is unsafe on the basis that the fresh medical evidence casts doubt on the reliability of the medical evidence of Dr Aziz. It is said that the appellant had no opportunity to obtain expert evidence to challenge Dr Aziz’s evidence, in particular, to challenge her conclusion that the presence of a hymenal scar in the 7 o’clock position was conclusive proof of penile penetration. Had the jury heard a challenge to the evidence and conclusions of Dr Aziz, the outcome of the trial might well have been different.[62]In response, Miss Ascherson submitted that Dr Aziz’s conclusions were legitimate. They were based upon the physical evidence obtained on examination, and TL’s history, which eliminated the possible non-sexual causes of injury. It was open to defence counsel at trial to challenge the causation of the injury, but she did not do so: indeed, the fact of prior intercourse was an important part of the case that she mounted in support of the contention that the appellant was seeking to challenge TL about her behaviour in general and with J in particular.[63]More particularly, the way in which the case was conducted meant that the loss by TL of her virginity did not corroborate the allegation of rape. Counsel then acting for the appellant relied upon the medical evidence as the basis for an application under s. 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine TL about an alleged sexual relationship with J, which the defence submitted was TL’s motive for making false allegations of rape against the appellant, in retaliation for his attempts to stop their relationship. That there was an inappropriate relationship between TL and J was core to the defence. Because of the medical evidence, that application was not resisted.[64]Moreover, Miss Ascherson argued that the medical evidence was not central to the case. There was a considerable amount of uncontested surrounding evidence which supported the allegation, including, for example, the appellant inviting TL to spend the night with him in a hotel room with only one bed; giving her an adult’s black cocktail dress to change into; and telling her to lie on the telephone to her guardian about her whereabouts, thereby acknowledging that it was not appropriate for her to be spending the night in a hotel room with him.[65]Reviewing all the material now available, we do not agree that the evidence of Dr Aziz was materially inaccurate or misleading. Dr Aziz performed a careful and appropriate examination of TL, and identified a full thickness transection (which was a deep, wide U-shaped tear) in the posterior of the hymen, at the 7 o’clock position. The tear had healed and it was not possible to date it. On analysis, there was little difference between the expert opinions of Dr Pillai and Dr Aziz on the possible causes of such an injury. Both doctors agreed that such a finding was strongly supportive of trauma caused by penetration. Most commonly, such injuries are caused by blunt force trauma from sexual penetration (whether forced or consensual). More rarely, the penetration may be non-sexual. For example, an accident, such as a fall astride a penetrating object, or pushing a tampon hard against the rim of the hymen, instead of through the hole in its centre. Both experts agreed that a complete, wide hymenal transection will cause pain and bleeding, and a burning sensation when urinating. Therefore, it will usually be a ‘memorable’ event, not something to go unnoticed.[66]Dr Aziz took a medical and personal history from both TL and her mother, eliciting all the relevant information, so that she could form an opinion as to the likely cause of the transaction: we repeat it. There was no history of an accident causing harm to her genitalia. She had not been penetrated digitally or with any other object. She had never used tampons; she used sanitary pads when menstruating. It is noteworthy that she was menstruating on the day of the examination by Dr Aziz (and presumably using a pad, not a tampon), and her evidence was that she had been menstruating, and using a sanitary pad, on the day of the rape. Miss Ascherson took her through these findings in front of the jury so jury members were able to consider it. We consider it would have been obvious to members of the jury that the reason why this evidence was being adduced was to eliminate other possible causes of injury.[67]In the light of that history, we consider that Dr Aziz was justified in forming the expert opinion that the transection was the result of a blunt force trauma by a penetrating object (i.e. an adult penis or other object such as a sex toy), which caused the hymen to over-stretch and tear. This was the only plausible explanation for the transection, in the absence of any evidence of an accidental injury.[68]In her evidence Dr Aziz said that the wide, deep, full thickness, U-shaped transection, at the 7 o’clock position, was “diagnostic of penetrative sex, penetrative injury”. Later she agreed with counsel that it was diagnostic proof of sexual activity. Dr Pillai said in her supplementary report that it was inappropriate for Dr Aziz to describe the hymen transection as “diagnostic” of sexual penetration. In Dr Pillai’s view, the appropriate term was “supportive” of sexual penetration. However, in her initial report she said confirmed that a finding of a complete transection in the posterior hymen was “strongly supportive” of sexual or accidental penetrating injury because transection did not occur naturally in that location. Dr Pillai accepted in her supplementary report that, in the light of the information Dr Aziz had provided about TL’s history, it was unlikely that there was any non-sexual event that might account for the hymen transection. In those circumstances, sexual penetration was the only remaining explanation. Therefore we do not consider that the use of the word “diagnostic” misled the jury. Nor do we think that Dr Pillai’s alternative formulation (“supportive” or “strongly supportive”) would have made any difference to the jury’s understanding of the issue.[69]Our understanding of the meaning of the term “diagnostic” is that it refers to a distinctive symptom or characteristic which enables a diagnosis to be made. Somewhat curiously, the Judge when questioning Dr Aziz, asked her if “diagnostic” meant “conclusive”, and she agreed that it did. In his summing up, however, he did not say that it was conclusive of sexual intercourse but said:
“Dr Aziz said: “That is what I found, which is consistent with a young woman having been penetrated by an adult penis or an object of some kind. She said the finding that I, or the symptom that I saw is diagnostic, it is conclusive that the hymen has been over stretched and has therefore been penetrated by something.”
We were satisfied that this fuller explanation was satisfactory and did not mislead the jury.[70]In her evidence Dr Aziz referred to research which confirmed that a full thickness transection between the 9 o’clock and 3 o’clock positions was not a normal variation of the hymen. When found in a child, it was diagnostic of sexual abuse. Dr Pillai took issue with this aspect of Dr Aziz’s evidence, but on analysis, the real criticism was that Dr Aziz’s formulation did not take account of the possibility of accidental non-sexual injury to the posterior hymen. Dr Pillai accepted in her initial report that an undisrupted posterior rim of hymen was always present in pre-puberty, except where damaged, and development in puberty would not naturally cause a full thickness transection to appear. She concluded that “in an adolescent a finding of a complete cleft/transection in the posterior hymen is strongly supportive of sexual or accidental penetrating injury”. Thus, if accidental penetrating injury had been excluded as a possibility in any particular case, a posterior transection would be indicative of a deliberate sexual penetration. In the case of a child below the age of consent, that would be unlawful and therefore abusive. Therefore Dr Aziz’s evidence was not inaccurate.[71]Dr Pillai was also critical of Dr Aziz‘s evidence that injuries to the hymen caused by penetrative sex were generally in the lower part of the hymen. Dr Aziz’s explanation was that an erect penis does not enter the vagina in a straight line; it moves in a downward trajectory to avoid the bone above the vaginal passage. Dr Aziz referred to research in support of her assertion. Dr Pillai referred to research which showed that some sexual assaults caused no genital injuries, whilst other assaults caused injuries to the lateral part of the hymen, the vulva, the labia and the posterior fourchette or fossa. We do not know the precise nature of the sexual assaults analysed. In our view, this difference of view does not impact upon the reliability of the evidence presented to the jury in this case. There was undoubtedly posterior injury found here, and it was consistent with penetration by a penis. Dr Pillai rightly observed that non-sexual penetrative injury could also occur in the posterior hymen, but as we have already explained, there was no evidence of non-sexual penetrative injury in this case.[72]Similarly, in the context of this case, we do not accept that the evidence of Dr Aziz was inaccurate on the grounds that she did not make it clear to the jury that not every woman suffers a hymenal injury when she is first sexually penetrated. This would only have been relevant if either there was no evidence of a hymenal injury or if there was evidence of an alternative non-sexual cause of the hymenal injury. Neither applied on the facts of this case.[73]Dr Aziz said that it was not possible for her to estimate the date on which the transection had occurred. Nor could she say whether or not there had been penetration on more than one occasion because subsequent penetration would not cause a tear, as the hymen had already been stretched. This left it open to the defence to suggest to TL that she had had sexual intercourse with J, not the appellant. The evidence that TL had been sexually penetrated did not inevitably lead to the conclusion that the appellant had raped her and it is both significant and understandable that defence counsel did not challenge the evidence that the hymenal injury was evidence of sexual intercourse. Instead, as we have indicated, the fact was used it to bolster the defence case that TL was in a romantic relationship with J and had fabricated the rape allegations because of her resentment at the appellant’s attempt to force her to end their relationship.[74]Given the way in which the defence was conducted, Dr Aziz did no more than demonstrate that TL had suffered a penetration of her vagina. Even accepting that the history she obtained excluded non-sexual penetration (which was not put in issue), she could not (and did not seek to) differentiate between the likelihood that this had been as a consequence of sexual intercourse with the appellant or J. The judge’s leading question did not cause him to misrepresent the position when he summed up the case to the jury and we do not accept that it is even arguable that the jury was misled.[75]It was, of course, the case that the medical evidence did not prove the allegation: Dr Aziz never suggested that it did. For the reasons we have discussed, whether called diagnostic, strongly supportive or characteristic so as to enable a diagnosis to be reached does not take the proper assessment of the evidence or this case further. To say (as Dr Pillai does) that Dr Aziz was not present at the time and did not witness the alleged events again takes the case no further: she did not seek to suggest that anything she said demonstrated that the appellant raped TL and neither does it.[76]In truth, with one exception, the medical evidence did no more than provide the background for the challenge between the prosecution (rape by the appellant) and the defence (the encounter was so that the appellant could challenge TL about her involvement, including her sexual relationship, with J). The exception concerned the evidence of TL of the burning sensation when she passed urine which she described as having occurred after intercourse with the appellant: that was a very significant detail because, for the reasons explained above, it was consistent with all the medical evidence as likely to obtain after first rupture of the hymen.[77]The case consisted of a direct conflict between TL and the appellant covering the reason for her return to his bedroom and all that transpired thereafter: it depended on the view the jury took of their respective credibility. In our judgment, it is inconceivable that the jury could have rejected the evidence of TL as to her activities with J (thus accepting the possibility that the appellant was accurately recounting what had happened) without also rejecting the allegation of rape. As to that, the appellant faced very real difficulties: on his own account, he had taken a 15 year old girl into his bedroom, changed into his pyjamas, allowed her to undress providing alternative clothing for her to wear and caused her twice to lie about her whereabouts to her guardian. They had remained in a single bedroom for the night. The explanation that he did not have enough money for another room hardly bears examination when he was able to provide her with £500 (and had originally intended to provide £1,000) the following day (albeit to be repaid).[78]In the circumstances, applying the approach set out in s. 23 of the Criminal Appeal Act 1968, we accept that the evidence of Dr Pillai is capable of belief and would have been admissible if it had been adduced (although given the defence advanced, we fully understand why alternative medical evidence was not sought). We do not accept, however, that it affords any ground for allowing the appeal. Quite apart from the question whether it would be appropriate to admit expert evidence in these circumstances (as to which see the observations of Lord Bingham CJ in R v Steven Jones [1997] 1 Cr. App. R. 86 at 93D), as has been made clear in a long line of authorities (set out in R v Burridge [2010] EWCA Crim 2847 and R v Ahmed [2010] EWCA Crim 2899, following the approach in Dial & anorv. State of Trinidad and Tobago [2005] UKBC 4; [2005] 1 WLR 1660), ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions is unsafe.[79]Having regard to the strong challenge that has been mounted to this conviction, we have considered all the circumstances in depth. In our judgment, however, on analysis the evidence of Dr Pillai does not afford any ground for allowing the appeal and does nothing to render this conviction arguably unsafe. The appeal based on the Reference by the CCRC is dismissed.