Smith, R. v [2017] EWCA Crim 895

[2017] EWCA Crim 895Case No 201604194 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 15 June 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TREACY
MRS JUSTICE WHIPPLE DBE
HIS HONOUR JUDGE PICTON
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
R E G I N ACrownv
Between
DELANDO SMITH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms C Guiloff appeared for AppellantMs T Hay appeared for Crown
J U D G M E N T (Approved)

LORD JUSTICE TREACY:

[2]This appellant was convicted on 11 August 2016 in the Crown Court at Croydon of three counts of rape (counts 1, 2 and 3), one count of assault by penetration (count 4) and one count of causing a person to engage in sexual activity (count 5). He appeals against conviction with the leave of the single judge. The usual anonymity provisions apply in relation to the victims in this case.[3]Counts 1 to 3 relate to the complainant A, who, on 17 May 2015, was waiting at a bus stop after a night out. The Crown's case was that the appellant, a stranger, approached her in a car at the bus stop and offered her a lift, which she accepted. The Crown alleged that, having later stopped the car, he forcibly made her perform oral sex upon him (count 1). They then went to his flat where both vaginal and anal sex took place without her consent (counts 2 and 3). To prove its case, the Crown relied, inter alia, upon evidence from A; evidence of a complaint of rape made the following day; DNA evidence from vaginal swabs; and similarities between the offending against A and that against B, the complainant in counts 4 and 5.[4]The defence case was that consensual oral sex had taken place in the car, followed by consensual vaginal intercourse at the flat. The appellant could not remember anal sex taking place but said that A had been a willing and active participant in what had occurred. The appellant had produced to the police extracts from a video recording made by him on his phone in the car on the night in question. The original recording was not provided.[5]In relation to counts 4 and 5, victim B had gone to a nightclub and then to a fried-chicken shop in the early hours of 31 January 2016. She left the shop apparently without telling friends and got into a vehicle driven by the appellant, the same Nissan as he had been driving on the previous occasion. She said that the appellant offered her drugs. When she tried to get out of the car she found the doors were locked. The appellant then stopped the car in a car park, forced himself upon her and put his fingers into her vagina (count 4). B then negotiated that she would touch herself rather than have the appellant touch her. She touched her vaginal area whilst the appellant masturbated and pretended to enjoy it (count 5).[6]The Crown relied on evidence from B, evidence of complaints of sexual assault to family and friends and evidence of a complaint of digital penetration at a clinic, together with CCTV evidence of the appellant's car's movements at the relevant time. In addition, the Crown relied on similarities between this offending and that against A. The Crown also relied on some of the content of the recording which had been produced by the appellant himself.[7]The appellant's case was that B had asked him to stop the car so that she could take drugs. The conversation had turned to sexual topics. B had then voluntarily shown him her vagina. He asked if he could touch it, but she declined and touched herself while he touched himself. In other words, his case was that the activity was consensual. In addition to giving evidence, the appellant called evidence designed to show that the car could not be locked from the inside unless the keys were out of ignition.[8]The first ground of appeal is that the judge was wrong to reject a submission of no case to answer in relation to count 4. The submission was put on the basis that there was uncertainty as to whether the appellant had touched B's vagina and, if so, to what extent. Accordingly, it was argued that a properly directed jury could not be sure of sexual assault by penetration. Particular reliance was placed on ambiguity or uncertainty in B's account as to whether there had been penetration. The judge rejected that submission and is said to have been in error for doing so.[9]We are not persuaded that the judge was in error. The judge considered the relevant evidence in detail. He correctly noted that at different points in B's evidence she had varied between speaking of the appellant trying to put his fingers into her vagina, and saying that she believed that his fingers had gone inside her, albeit briefly. Having recited B's evidence the judge noted that in addition there was evidence of the complaint to the clinic made shortly after B's complaint to the police that she had been digitally penetrated, and there was some material on the recording produced by the appellant which was capable of supporting the allegation. In addition, there was evidence of some injury in the vaginal area, albeit that B had acknowledged touching herself in the way described in count 5. The judge reminded himself that the legal definition of "vagina" includes the vulva, and that only slight penetration of that area is required.[10]We have come to the conclusion that, contrary to the submissions for the appellant, the evidence was such that a properly directed jury could convict. Clearly the evidence was far from conclusive, and worthy of careful consideration. There was indeed material available to the defence in rebutting the allegation. But, in our view, there was sufficient for a jury properly to conclude that penetration had taken place. We therefore reject this ground.[11]The second ground represents a complaint about the judge's conduct on two separate occasions after the trial had been proceeding for about a fortnight. The first occasion is not relied on in its own right, but Miss Guiloff submits that it should be viewed cumulatively with the second occasion. The overall submission is that the judge's treatment of defence counsel significantly undermined her, firstly in front of the jury and secondly in the absence of the jury but in the presence of the appellant during a crucial stage in the defence case. The effect of this was that the appellant was denied a fair trial, particularly because the judge's censure of counsel in front of the jury may have harmed the defence.[12]We have read the transcripts of the exchanges complained of and also listened to the audio recordings. On the first occasion, counsel was cross-examining the officer in the case and exploring whether any consideration had been given to testing the appellant for drugs. After some exploration of the topic, the judge intervened to ask counsel about the nature of the questioning and to what issue it was relevant. After some exchanges, he said to counsel, in the presence of the jury in a firm voice, "Good common sense, Miss Guiloff, let's apply a bit of common sense".[13]After further exchanges in which the judge asked where the cross-examination was proceeding in the light of clear answers from the witness, counsel responded by saying that the parties were interested in the appellant having a fair trial. At this, the judge sent the jury out and there followed further exchanges between the judge and counsel in which he criticised her for the comment made about a fair trial and for her style of cross-examination. During the course of this, the judge made clear that counsel had a duty to defend her client and that the exchanges that were taking place in no way reflected upon the appellant. He said he would permit some further questions on the topic raised. We understand that, on the jury's return, they were told that any disagreement between judge and counsel did not reflect upon the appellant, and counsel then proceeded to cross-examine on the topic upon which she had already embarked.[14]The second episode took place on the following day, by which time the appellant was giving evidence. During his examination-in-chief, counsel was dealing with what could be heard on the mobile phone video footage recorded in the car. In so doing, counsel put to the witness words which she asserted were on the footage and asked the appellant if they were correct. There had been no prior agreement as to what could be heard on the footage, and, in essence, the question was a leading one, to which the Crown had been about to object had the judge not intervened.[15]The following exchange took place:
"THE RECORDER: If you do that again, Ms Guiloff, I will send the jury out and home for the day whilst we sort it out. MS GUILOFF: We can play it again and again. If I said anything that is not on there, your Honour, obviously it is a matter for the jury what's on there. THE RECORDER: It is a matter for the jury and you are not giving any -- turn it off, turn it off. I said turn it off now. MS GUILOFF: I am doing my best, your Honour. THE RECORDER: You are not doing your best, you are very senior counsel and those kind of suggestions and telling the jury or saying in front of the jury what is in evidence is just not playing by the rules and you know that. MS GUILOFF: Can I play it? THE RECORDER: No, you can't. Members of the jury, please leave."
The instruction to turn off the recording sounds as if it were shouted. The judge's final comments were said in an emphatic tone of voice.[16]The jury withdrew and the judge was then critical of counsel's having led the witness. He said that her behaviour was "quite unprofessional". Counsel responded that she had not thought that the passage was contentious, but acknowledged that it was not for her to tell the jury what was on the recording. Counsel said that the reason for thinking that the passage was uncontentious was because it had appeared clear to her. Some of these exchanges involved the judge speaking in emphatic terms.[17]There was then a short adjournment, after which counsel apologised to the judge, followed by a discussion as to what counsel should say to the jury on their return. Counsel acknowledged that the episode was her fault and the judge said that, if there was a repetition, he would have to consider sending transcripts to the Bar Standards Board. The judge concluded by saying:
"You are a very senior junior of enormous experience and it is not something that happens by accident at your level. We will have the jury in, please."
[18]On the jury's return to court, matters proceeded as follows:
"THE RECORDER: Members of the jury, before we proceed with any further evidence, Ms Guiloff has something to say to you. MS GUILOFF: Members of the jury, with his Honour's leave, what I say to you is not evidence. The evidence comes from the witness box as his Honour has directed you earlier on. You make up your own minds what is on any piece of footage not me and so you must -- so the time that has been lost, my apologies, we are going to play the footage now and obviously you make up your own minds independently. What I say doesn't matter at all. It is only what's on the video and your view and any evidence you hear about it but not -- evidence does not come from me so for the time that you have lost I apologise. With your Honour's leave -- THE RECORDER: Understand this, members of the jury, you will discount entirely anything that has come from the mouth of Ms Guiloff which has not come from this witness giving evidence on these matters, the videos, regarding the content or what she thinks she may hear on the video, all right. You must not take that into account and if you have made any notes of it, you should cross them out. Ms Guiloff knows that that is something that she is not under the rules of the court allowed to do and she is very senior counsel. MS GUILOFF: So without more ado can I play the evidence so that what is on there can be heard? THE RECORDER: Yes, of course you can."
[19]Apart from the exchanges we have specifically identified, the discussions or exchanges took place in a normal tone of voice. One of the key criticisms made is that, on two occasions during the second episode and in the presence of the jury, the judge had said that counsel was knowingly doing something she was not allowed to do. It is submitted that this could only have had the effect of diminishing counsel's standing before the jury. Moreover, this intervention during the appellant's evidence-in-chief was unfair to him.[20]Since ground 3 also relates to the overall fairness of the proceedings, it is appropriate to deal with that before ruling on ground 2. The essential complaint in ground 3 is that the summing-up was not fair either in content or in tone. A series of points has been made by Miss Guiloff in support of her contentions.[21]Firstly, she is critical of a direction which the judge gave, to the effect that the jury should not accept the advocate's version of what a witness had said unless they agreed with it. That direction was given in the context of telling the jury what was and was not evidence. Miss Guiloff suggests that it was a pointed reference back to the episode in relation to the recording.[22]In our view, what was said was part of a standard direction and the whole passage was put in terms which clearly referred to both advocates, rather than singling out Miss Guiloff. We do not consider that there is anything in this point.[23]Next, there is a criticism of the judge's directions on cross-admissibility. The complaint is that initially the judge pointed out similarities between aspects of the evidence of A and B, but failed to balance that by pointing out differences. At that stage, he had referred to the fact that Miss Guiloff had highlighted a list of differences in her speech but did not go into the detail. However, at a later stage in the summing-up the judge returned to the topic and did enumerate a variety of factors which had been relied on by Miss Guiloff. Again, we do not think that the criticism is sustainable.[24]There is criticism of the judge's directions in relation to previous inconsistent statements made by either or both of the complainants. It is submitted that the directions given were confusing, and in particular that the judge had failed to tell the jury that, if they rejected explanations for inconsistencies, they should treat the witness's evidence with caution. It appears on examination of the transcript that that criticism is correct, in the sense that the judge did not give that direction.[25]However, it seems clear to us, both from the fact that the jury were reminded that Miss Guiloff had pointed to inconsistencies and from the obvious reason for giving a direction on the topic, that the jury will have appreciated that, if there was no good reason for inconsistent evidence, it would mean that they might not be sure about the witness’s evidence. The jury had been repeatedly reminded that it was for the Crown to make the jury sure of its case, and in particular that A and B had not consented to sexual activity on each count.[26]Accordingly, we do not think that the failure to mention the need for caution was a misdirection which could compromise the safety of the convictions, although it was undoubtedly a blemish in the summing-up.[27]In the course of directions about inconsistency, the judge had referred to the question of whether the complainant had a motive to lie to family and friends. The judge had said that the jury should consider that area of the evidence in the context of considering inconsistency. It is said that the judge should not have told the jury that it was not for the appellant to prove motive. We do not accept that such a direction was required. The question was posed as part of a general series of considerations, and it was made plain to the jury where the burden of proof lay.[28]It was also submitted that the judge should have explored potential motives; for example, in the case of B, who had apparently fallen out with a friend of hers and might have wished to attract sympathy by making a false complaint. As to that, the judge made plain that he would not sum up all of the evidence and the arguments made. He had reminded the jury that arguments had been made on both sides and had been made at some length. He said he did not intend to repeat all of them, but did refer generally to feelings of regret, shame and other emotions which might generate false complaints. In that way we are satisfied that the jury was made aware that it could consider points made for the appellant in relation to this issue if it thought that they would assist them.[29]Next, Miss Guiloff made a series of points in relation to the judge's handling of the evidence of a Ms Clancy, a friend of A, who had been texted by A before or at the time of the alleged offences. There had been a problem with recovering the relevant text messages and there was a dispute as to their chronology and significance. One of the messages might have demonstrated, depending on the jury's view of it, that A was seeking help at the time of the assaults upon her. The judge undoubtedly made an error about the sending of those texts when he summed up. However, that was corrected immediately before the jury retired by prosecuting counsel, who commented that it was a point upon which the defence might wish to rely. The judge endorsed that. We are told that in fact a member of the jury had spotted the apparent source of the error, which all parties had made, at a late stage of the case, so that the correction ought to have had a particular resonance with the jury. We consider that what was done by way of correction was sufficient to deal with the error.[30]A further point arises in that it is said that the evidence of Ms Clancy was not summed up in a balanced way. We have considered passages referred to in the written submissions of Miss Guiloff and come to the conclusion that the overall summary of Ms Clancy's evidence was not unbalanced or unfairly dealt with, and that both sides of the case on the issue were sufficiently put during the course of the summing-up.[31]There is also a complaint that the judge did not give a balanced account of the cross-examination of the complainants. Again, we have reviewed the passages referred to and have concluded that matters were sufficiently dealt with.[32]The final area of criticism is that the tone of the summing-up was biased and unfair. As is apparent from the foregoing analysis, we do not accept that the criticisms made have any serious substance which could impact upon the safety of the conviction. Some of the criticisms made appear to us to have the character of a desire that the judge should make every point already made by defence counsel to the jury. That is not the function of the summing-up. In the circumstances, we are unpersuaded that the third ground of appeal is made out.[33]That brings us back to ground 2. It seems to us that there was justification on each occasion for the judge to have intervened. It is the second episode which is principally relied upon by counsel. We consider that the judge was wrong to have shouted an instruction to counsel to turn off the recording, and, more importantly, to have accused counsel of knowingly failing to "play by the rules". That happened on two occasions, with the second occasion occurring after counsel had tendered an apology and explained that she had done what she did because the content of the tape had seemed clear to her.[34]In our view, there was no justification for the course which counsel had taken, which was in effect to put words into the witness's mouth on a key area of the case when there had been no agreement as to what had been heard on the tape. Despite that, we consider that there was no justification for the judge to have said what he did in front of the jury, although he might justifiably have said that counsel should have known better.[35]We are unpersuaded that what took place had any adverse effect upon the appellant's evidence. The judge had already made clear to the appellant after the first occasion that his exchanges with counsel had nothing to do with the appellant and had given other substantial reassurances to him. On the second occasion, after the episode had concluded, the judge gave the appellant time to settle lest he had been discomfited by the exchanges. The judge subsequently showed a considerable degree of latitude as to the way in which the appellant gave his evidence and in which he was able to present other evidence in his defence. Accordingly, in so far as impact upon the appellant is concerned, we do not think that what occurred is something which avails him in this appeal.[36]Even if there was no direct impact upon the appellant, it is important for us to consider whether the judge's conduct was such as to lead to an unfair trial by reason of the creation of a real risk that the jury might have been prejudiced unfairly against the appellant or that the standing of defence counsel had been seriously undermined.[37]We do not consider that the first episode substantially adds to the picture and consider that the judge's comments to the jury after the first episode would have been recognised by them as having general application in not reflecting upon the appellant's case.[38]Nonetheless, we have given anxious consideration as to the overall effect of what occurred as a result of the judge's criticisms of counsel. The comments should not have been made in the terms used, but the episodes were brief in a trial which had lasted about four weeks, and had occurred in situations where the judge was correct to intervene. The jury did not retire until about ten days after the second episode. There is no suggestion that after that episode the trial did not proceed in a normal way thereafter. That is important in assessing the overall impact of what took place. Furthermore, there is nothing which the judge said in the course of his summing-up which, in our judgment, showed anything other than appropriate respect for defence counsel and the arguments she had made. There are instances in the summing-up of the judge drawing specific attention to points made by Miss Guiloff in a way which showed that her submissions had been properly and credibly made.[39]It is for us to stand back and form an overall impression of the impact made by the episode which we have indicated was regrettable. We have ultimately come to the conclusion that what occurred, when taken in the overall context of the trial, unfortuante though it was, was not sufficient to render the proceedings unfair. In that context, we have considered R v Lashley [2005] EWCA Crim 2016 and R v Cordingly [2007] EWCA Crim 2174. Those cases are, of course, fact specific, and each case of this type must be assessed on its own particular facts. That is what we have done.[40]In all the circumstances, we conclude that ground 2 fails, with the result that the overall appeal against conviction is dismissed, notwithstanding Miss Guiloff's strenuous efforts to the contrary.