Lawson, R. v [2015] EWCA Crim 741

[2015] EWCA Crim 741Case No 201401050 B1 and 201401141 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION S9 CAA 95
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/05/2015
Before
LADY JUSTICE MACUR DBEMR JUSTICE CRANSTONMR JUSTICE HOLROYDE
Between
ReginaAppellantLatevi LAWSONRespondent
Ms S Whitehouse QC (instructed by Crown Prosecution Service Appeals Unit) for AppellantMr J Coningham (instructed by Coninghams Solicitors) for RespondentHearing Hearing dates : 20 March 2015
JudgmentLady Justice Macur DBE :
[1]On 10th November 2006 the appellant was convicted of three counts of sexual assault. The jury could not agree upon verdicts on six other counts of sexual assault and one charge of rape. The single judge refused leave to appeal conviction. The application was renewed before the full Court but was dismissed in December 2007.[2]On 16th January 2008 at a retrial the appellant was convicted by majority of rape.[3]He was sentenced to 8 years imprisonment for the rape with 1 year imprisonment concurrent for the sexual assaults. Ancillary orders relating to his registration on various lists were made.[4]In July 2008 the single judge refused leave to appeal conviction in respect of the rape conviction. The application was not renewed. 5. On 17th November 2011 the appellant lodged an appeal against all convictions upon a reference made by the Criminal Cases Review Commission (“the Commission”) under s.9 Criminal Appeal Act 1995 on the basis that there was fresh evidence which affected the credibility of the complainant's evidence and the significance of medical evidence regarding the conviction for rape which in turn impacted upon the safety of the convictions for sexual assault.[6]The fresh evidence was that of a previously undisclosed note made by an assistant social worker who had accompanied the complainant to a medical examination. The note revealed that the complainant had reported at that meeting that she had been raped as a child. The fact of a previous rape had been denied by the complainant in evidence at the re-trial and was not referred to in the statement from the examining doctor. The appeal was dismissed on 19th July 2012, (reported at [2012] EWCA 1961), the court having concluded, in short, that the social worker’s note was likely to be inaccurate since the statement of the examining doctor, Dr Wright, did not mention any assertion of childhood rape, and that statement was likely to be the more accurate record of the information provided by the complainant and was in any event, superfluous to the evidence already available in the ABE interview.[7]The appellant now appeals against the convictions upon a second reference by the Commission on the basis that original notes of two examining doctors now disclosed support the assistant social worker’s note to the effect that the complainant had reported that she had been raped as a child.[8]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. No matter relating to the complainant in this case shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the victim of the offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. This judgment will be anonymised accordingly.[9]The brief facts relevant to this appeal are these. The complainant, came to England with her sister on 28th February 2004. She was then just short of 16 years old. Her parents had died in Nigeria and their half-sister and her husband, the appellant, agreed that they should live with them in South London.[10]On 5th October 2004 M’s sister left and from that date onwards the complainant occupied a bedroom by herself.[11]On 18th January 2005 the complainant spoke to a counsellor at her school and made allegations of sexual assault and rape against the appellant. He was arrested the following day.[12]The prosecution case was that the complainant had been subjected to progressively serious indecent assaults, starting with touching her bottom over clothing and leading ultimately to rape.[13]The defence case was straightforward denial. The complainant was lying, possibly motivated by a desire to get herself re-housed.[14]The issue for the two respective juries was the complainant’s credibility. The firstjury were sure that he had touched her on her bottom on two occasions and, after her sister had moved out, that the appellant began to go to her bedroom and touch her on the bottom, breast and vagina. The second jury convicted him of rape. In this regard M said that she had returned from school and changed into her pyjamas. The appellant came to her room and refused to leave. He pinned her with his legs. She was crying and begging him to stop as he pushed her down and raped her. She told him that he had taken her virginity and he apologised and said that he had not known that she was a virgin. She thought that she was bleeding so she cleaned herself and had a bath. She had bled for 3 days. She did not tell her half sister because she thought that she would not be believed.[15]. In light of the basis of the arguments in this appeal it is relevant to refer to the allegations in respect of the other counts of indecent assault on the indictment upon which neither jury were able to agree.[16]On an occasion she woke up to find the appellant touching her leg. He said that he wanted to do “some exercise”. They struggled and he grabbed her breast over her clothing[17]On another occasion when in her bedroom when the appellant pushed her against the wall and touched her bottom and then put his hands down inside her pyjamas to touch her pubic area. She was crying. He ejaculated.[18]One night she woke to find the appellant laying on top of her. He pulled her knickers and pyjama trousers down. He sucked her breast. He ejaculated into his hand. He did this again on another occasion.[19]On yet another occasion she said the appellant came into her room at 4am. She woke with the appellant touching her. He said that he wanted to play. She started shouting and screaming and the appellant left.[20]Later she told her half sister, that the appellant “wanted to go to bed” with her and that he had been touching her. Her half sister said that she was going to telephone the appellant. Later she understood that the police had been to the address because someone had reported a disturbance at approximately 4.30am. Her half sister said the appellant had denied what had been said.[21]At the second trial she denied that she was raped by her landlord in Nigeria. She said she had been almost raped by him. This issue was not cross examined in the first trial. No investigation was made before the jury in the re-trial to an incident M apparently reported to the examining doctors that, when she was about 5 years old there had been a sexual assault by an adult male. Thecircumstances she described and as recorded in the witness statement of Dr Wright were suggestive, it appears at least to us and the first trial judge, of vaginal penetration and hymenal damage.[22]In both trials the witness statement of Dr Wright who had examined M on 3rd February and indicated that the complainant’s hymen was disrupted in three places was read. She could not say when the complainant had lost her virginity other than that it had been more than 72 hours previously.[23]The appellant gave evidence in both trials.[24]The Commission’s arguments on appeal amount to this:[25]At both trials, the complainant’s evidence was that she had been a virgin at the time of the alleged rape by the appellant.[26]At the retrial, the prosecution asserted that the evidence of hymenal penetration had resulted from the rape by the appellant.[27]The defence had argued that there was an explanation for the damage to the complainant’s hymen which was that the complainant had previously been raped by her landlord in Nigeria.[28]In cross-examination, the complainant unequivocally denied the suggestion that she had been previously raped or that she had ever told anyone so. The jury were directed that the medical evidence could only assist them if they accepted the complainant’s evidence that she had been a virgin at the time of the alleged rape.[29]In the course of its second review, the Commission has obtained fresh evidence concerning M’s medical examination from Dr Wright and her colleague, Dr Asiegbunam.[30]The fresh evidence confirms the accuracy of the social worker’s note and indicates that the complainant reported an incident which at least suggests that she had been penetrated vaginally at the age of five. Dr Wright has clarified that the hymenal injuries observed on examination could have been caused by the earlier incident and cannot, medically, be attributed to one incident rather than another.[31]Therefore, the fresh evidence renders the medical evidence of hymenal damage neutral in the case against the appellant and is also capable of undermining the credibility of the complainant’s account, on specific matters and as a whole. The Commission therefore considers that the fresh evidence gives rise to a real possibility that the convictions for rape and sexual assault will not be upheld.[32]They make an application to call fresh evidence relating to the contemporaneous notes of the medical examination of the complainant which recorded an assertion by the complainant that she had previously been raped.[33]The Respondent does not object to the receipt of the fresh evidence. The principal argument it advanced at the hearing of the 2011 CCRC Reference was based upon the premise, accepted and adopted by the Court of Appeal, that the social worker’s note was unreliable. It now appears from the witness statements of Drs. Wright and Asiegbunam that her note was in fact accurate. In these circumstances it is accepted that on the basis of the new evidence a jury might conclude that the complainant was raped at the age of 5 and this would account for the damage to the hymen. It is further accepted that this evidence might affect the complainant’s credibility in relation to the rape charge since her denial, when asked; that she had ever had intercourse might appear to be an attempt to bolster the significance of the medical evidence.[34]In those circumstances the prosecution accepts the importance of this evidence in the context of the rape charge. It is not now tenable for the prosecution to advance any other ground upon which the conviction for rape might be upheld.[35]In relation to the convictions for sexual assault, the Respondent argues that the fresh evidence has a more limited impact on the convictions for sexual assault than it has for the conviction for rape.[36]The grounds of opposition to the appeal against these convictions are:(a) The jury at the first trial could not agree upon verdicts on six counts of sexual assault and the one charge of rape which was then retried. The jury was plainly satisfied so that they were sure on three counts of sexual assault.(b) It follows that the jury were alive to the weaknesses in the complainant’s evidence and yet despite these weaknesses they were convinced by her evidence on the three specimen counts of relatively minor indecent assault. The evidence that she may have said she was raped at the age of five does not, in that context, detract significantly from her evidence in relation to the sexual assault alone.(c) Any lies (if a jury were to find them to be so) in relation to previous sexual intercourse are plainly relevant to the rape charge because the motive for telling such a lie would be to bolster the significance of the medical evidence in relation to the rape. There is no motive to tell such lies to bolster any evidence of sexual assault.(d) The defence at the first trial did not cross-examine M. even on the allegation of rape by the landlord. In those circumstances, it is unlikely that, for whatever reason, any great significance would have been attached to an allegation of rape by a family friend at the age of 5.(e) It was open to the defence at the first trial to seek to explore the allegation of ‘an episode of sexual abuse’ at the age of 5, even if it was not known to them that this amounted to an allegation of rape. The defence chose not to ask any questions about it which is an indication of the significance to be attached to it.[37]This case has raised several issues of concern for this court, not least at the manner in which the issue of M’s previous “sexual experiences” have been reported, and more significantly investigated with M outside the court arena, and tested, or not, before the first and second jury. In particular, we note that the Respondent does not say that she cannot be relied upon as a witness of truth. No one has asked her what her interpretation of the term ‘rape’ is. The opportunity for misapprehension is great. For example, the legal definition of rape since the advent of the Sexual Offences Act 2003 is a totally different concept to that which existed before. Many victims of non consensual oral sex may not appreciate that they have been raped. Others may blur the lines and description of sexual activity for their own reasons for self deception. During the re-trial the cross examination concerned the incident with the landlord, which is arguably only ever described as an attempted rape/ indecent assault in M’s video interview. There is nothing in the medical notes which undermines this.[38]The statement of Dr Wright, read at both trials by agreement, includes the following passage:
“She has not ever had consensual sex with anyone in the past, but reports that there was an episode of sexual abuse perpetrated on her at approximately 5 years of age by a male adult. She remembers some bleeding at that time. She informed her father who was a surgeon, who checked her, believed her and became very upset. The alleged perpetrator ran away.”
[39]At the first trial the judge reminded the jury of Dr Wright’s evidence that M was no longer a virgin (we interpolate that more precisely she should have been described as with hymenal damage) but directed that “it could have been any time...and there was evidence...that M had been sexually abused as a little child, when she was five years of age in Nigeria. So the medical evidence in this case ...is inconclusive...”[40]We see absolutely nothing wrong with this direction. It was undoubtedly appropriate, accurate and relevant to the issue of the medical evidence. It fairly and effectively neutralized the medical evidence in all the known circumstances.[41]This issue was however clouded, and unnecessarily so, during the second trial. The prosecution sought to rely upon the medical evidence as solely attributable to the alleged rape by the appellant. The appellant’s case was run so as to concentrate on the more confused reference by M to the adverse sexual attentions of her landlord in Nigeria when she was a teenager, to explain the medical evidence. In the circumstances of the evidence, and with the benefit of hindsight no doubt, we are somewhat surprised at each stance.[42]Prosecution counsel has informed the Commission that he did not consider the description of “the episode of sexual abuse” when M was 5 years old amounted to a penetrative vaginal assault. The defence advocate had referred to the incident when she was 5 in his application to cross examine M but subsequently agreed with the trial judge who did not think that “the indecent assault when aged 5 [had] anything to do with it.”[43]We do have a transcript of the legal argument although not the relevant ruling, but it appears that the second trial judge gave the defence leave to cross examine M on the previous sexual incident relating to the landlord pursuant to section 41 (3) (a) of the Youth Justice and Criminal Evidence Act 1999 . He considered that in her ABE interview M had been ambiguous in the reference she made to her landlord’s behavior in Nigeria. He accepted the defence submissions, rightly in our view, that the evidence related to a relevant issue in the case, namely the reliability placed by the prosecution on the medical evidence on the basis that M was said to be a virgin, in circumstances of a possible previous penetrative assault.[44]M thereafter denied that she had been previously raped or had told anyone that she had been. As we indicate above, technically this may be an accurate assertion.[45]The judge summed up the case to the jury on the basis that M had given evidence that she was a virgin at the time of the alleged rape by the appellant and that the medical evidence “only helps you if you conclude....that she was a virgin at the time of the [alleged rape]”. There was no reference made in the summing up to the incident which she had reported had occurred when she was 5 years old.[46]The contemporaneous notes of the examining doctors have now been obtained by the Commission and record:
“[M] disclosed that this is second episode of rape. 1st episode at age 5 years – says she was raped by an adult using a penis. Had some bleeding at the time.”
The notes were patently disclosable. We have inquired as to whether they were listed as unused material or any disclosure sought. Neither Miss Whitehouse QC nor Mr Coningham, neither of whom were trial advocate, were able to assist.[47]Dr Wright has subsequently explained that her use of the term “ sexual abuse” in her witness statement was in accordance with the definition provided by the Department of Health, Home Office, Education and Employment 1999 “Working Together to Safeguard Children” to mean “physical contact, including penetrative (e.g. rape, buggery or oral sex), or non penetrative acts.” This was obviously not appreciated by either trial advocate. Whilst we express some surprise that the description given in the statement of the incident when M was 5 was not a sufficient alert to the advocates or trial judge during the re-trial to the prospect of a penetrative assault having occurred, we consider that the anodyne descriptive phrase was unsatisfactory in the circumstances of the criminal investigation and, as it transpired to be, capable of misunderstanding.[48]We have no hesitation in admitting the ‘fresh’ evidence of the examining doctors. We are satisfied, in accordance with section 23 of the Criminal Appeals Act 1968, that:
“(1) it is necessary ...in the interests of justice ... [to] (c) receive evidence which was not adduced in the proceedings from which the appeal lies.” (c) receive evidence which was not adduced in the proceedings from which the appeal lies.”
[49]The evidence would have been admissible before the juries. We are satisfied that the evidence is capable of belief and affords a ground for allowing the appeal, or part of it. As indicated above, we query whether there is a reasonable explanation for a failure to adduce it within the proceedings but this is not fatal to the particular application before us, redundant as regards the exercise our discretion and therefore neither necessary nor proportionate to investigate further at this stage.[50]As the Respondent concedes, the fresh evidence has the ability to undermine the integrity of M’s assertion that she was a virgin, in terms of there being no possible previous hymenal injury, and therefore the context in which the medical evidence was placed before the jury at the re-trial by the prosecution and so directed by the judge. In all the circumstances, we are satisfied that the impact of the fresh evidence is sufficient to throw doubt upon the safety of the conviction for rape. Consequently, we quash the conviction for rape.[51]However, Mr Coningham, on behalf of the appellant argues that the fresh evidence is also pertinent as regards the convictions for the indecent assaults. He submits it would have been admissible evidence which went no further than necessary to enable the evidence adduced by the prosecution to the effect that M was a virgin, to be rebutted or explained by or on behalf of the appellant -see section 41(5) and would not have been adduced to impugn M’s credibility, so falling foul of section 41(4) but to example her bias against the accused. See A (No.2) [2002] 1AC, 45 paragraph 79.[52]Since no appropriate exploration of the reported incident when M was 5 has ever taken place we are unable to be sure whether she has a particular definition of rape in mind which leads her to deny a previous rape, or whether she was isolating the incident with the landlord, which was the issue upon which she was cross examined in the second trial. However, we are prepared, for the sake of this argument, to assume that this rebuttal of M’s evidence on the point of her virginity, could be presented in such a fashion before the jury to suggest that M wished to increase the prospect of a conviction once it became clear to her that the medical evidence was potentially corroborative of her allegation. In practical terms this then does become an issue of credibility. However, we accept the written submissions of Miss Whitehouse QC that it is the evidence of her denials and the apparent inconsistency which goes to credibility, rather than the issue of any sexual behaviour. See A, above, at paragraphs 76 and 138.[53]The reality is, however, that M did not defend her claim of virginity in the first trial, as she did in the second. This was a non issue in the first case. It was not pursued by the defence and was firmly negated by the trial judge’s directions concerning Dr Wright’s evidence. If it had been an issue in the first trial there was sufficient material in the witness statement of Dr Wright to call for some explanation from M without necessity to have the ancillary notes of medical examination. In those circumstances we are unable to accept Mr Coningham’s argument that this case falls in line with that of DGF [2008] EWCA Crim 2859 in which it was held that the “unwholesome sexual activities alleged...against the appellant, whether they amounted to indecent assault or eventually culminated in occasions of non consensual sexual intercourse, were all utterly and totally entwined.”[54]The facts of DGF are broadly similar to this - allegations made of indecent assaults and rapes. The jury convicted of the indecent assaults but could not agree in relation to the rapes. The trial judge in DGF had given restricted permission in relation to cross examination of the complainant’s reference to sexual activity with her boyfriend at a time when an allegation of rape was made against the appellant and in the context of a reported ‘pregnancy scare’ but not otherwise. However, he had denied permission to the defence advocate to investigate other details contained within her medical reports including, most significantly, that she had referred to the identity of the putative father, if she was pregnant, as her boyfriend, not the appellant. The then Lord Chief Justice made clear that the decision was “fact specific.” The court had been “left with doubts about the safety of the convictions of indecent assault returned by a jury which did not have all of the available admissible relevant evidence.”[55]We are not satisfied that there was the degree of intertwining between indecent assault and rape in this case to raise a similar doubt. The jury was directed to consider the counts individually, and obviously did so on each occasion. All ‘troubling’ aspects of her evidence were investigated at some length in both trials. That issue of her lack of credibility – which we are prepared to assume for the sake of argument – cannot apply in the circumstances of the first trial when M was not challenged about her claim of ‘virginity’ and yet the judge effectively dismissed it from account.[56]We are quite sure that all the building blocks in relation to the incident when she was 5 were available at both trials– the lack of construction cannot be realistically regarded as fatal to safe process in relation to all counts. We have no doubt as to the safety of the convictions in relation to the indecent assaults. The appeal against conviction in relation to these grounds is dismissed.