Marchant, R. v [2018] EWCA Crim 2606

[2018] EWCA Crim 2606Case No 201800737 C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT BRISTOL
HHJ HORTON
T20177281
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/11/2018
Before
LORD JUSTICE LEGGATTMR JUSTICE LEWISTHE RECORDER OF RICHMOND UPON THAMES, HIS HONOUR JUDGE LODDER QC (SITTING AS A JUDGE OF THE CACD)
Between
The QueenRespondentMark marchantAppellant
Mr David Maunder for AppellantMs Rachel Drake (instructed by the Crown Prosecution Service) for RespondentHearing Hearing date: 20 November 2018
Judgment Approved
[1]On 22 January 2018, following a trial in the Crown Court at Bristol before HHJ Horton and a jury, the appellant was convicted of an offence of rape. He was acquitted on the direction of the judge on two associated counts of assault by penetration. He appeals against his conviction with leave of the single judge on the grounds that he did not receive a fair trial because the judge allegedly intervened improperly during the appellant’s examination-in-chief and summed up the case to the jury in a way that was fundamentally unbalanced.[2]Reporting restrictions apply in this case and nothing must be published which would be likely to lead members of the public to identify the victim of the offence.

Background

[3]At the time of the alleged offence, the complainant was 23 years old and the appellant was aged 36. They had been friends for some time. On the previous day, Saturday 5 August 2017, they had a long text message conversation during which the appellant expressed feelings for the complainant that he had not expressed before. The complainant responded kindly but made it clear that she loved her boyfriend and did not want a relationship with the appellant. He did not push the issue but asked if they could meet socially, as friends, later that evening. The complainant agreed to do so.[4]They met at the home address of a mutual friend known as “Alan” Morgan in Weston Super Mare. The appellant had been there from about 2pm in the afternoon, drinking alcohol and taking cocaine with Alan Morgan. The complainant joined them in the evening after having dinner at a local restaurant with her family. There were two or three others present. Some time after midnight the complainant went out to a nightclub with a female friend, but they returned to the flat in the early hours to continue socialising with the appellant and others. Everyone present, including the complainant and the appellant, was drinking alcohol and taking cocaine.[5]At what may have been around 4.30am the complainant fell asleep on the sofa. At some time around 8.30 or so in the morning, Alan Morgan and another man (Chris Fawcett) went out to buy some more cocaine. Apart from the appellant and the complainant, the others who had been present had by this time left. The complainant’s evidence, given in a video recorded interview on the afternoon of 6 August, was that she was disturbed in her sleep by the appellant picking her up and carrying her downstairs to the bedroom. She believed he was being friendly by taking her to bed and went back to sleep in his arms. The complainant said that the next time she woke she found the appellant on top of her with his penis inside her vagina. She pulled away from him but he continued to try to touch her intimately whilst she moved away from him in a state of semi-consciousness. The complainant said that the appellant stopped when his phone rang and he went upstairs. When he came back, he tried to touch her again but she became more physical with him and told him “no”. The appellant then got dressed in a hurry and left the premises.[6]As soon as he had left, the complainant grabbed her clothes and ran to the flat above, which was occupied by Alan Morgan’s mother, Jean Morgan. Both Jean and Alan Morgan were called as witnesses by the prosecution at the trial. The complainant gave Jean Morgan an account of what had happened. Jean Morgan contacted her son, who in turn telephoned the appellant. The appellant told him that he had had (consensual) sex with the complainant. When Alan Morgan returned home, the complainant told him what she said had happened and described feeling “ripped and torn” in the vaginal area. The complainant was taken to hospital and the hospital contacted the police. A medical examination was carried out which found no tearing but vaginal and abdominal tenderness and some bruising to the inner thighs and lower legs.[7]The appellant gave a prepared statement and was later interviewed by the police. At the trial he also gave evidence in his defence. He denied raping the complainant and said that she had consented to the sexual activity that occurred between them. He said in evidence that after Alan Morgan and Chris Fawcett had left the flat to go and buy drugs, he spoke to the complainant and asked her if she wanted a cuddle. She said yes and they started kissing. After about two minutes they moved downstairs and carried on kissing and touching each other over their clothes. They then undressed and tried to get aroused but he could not get a proper erection as a result of the drink and cocaine he had consumed. He penetrated her for less than a minute then became limp and had to withdraw. He was embarrassed. He said in evidence that before penetration he asked her “Are you all right with this?” and she had indicated that she was. She was happy to take part and was awake and participating throughout.[8]There was therefore no dispute at trial that the appellant intentionally penetrated the complainant’s vagina with his penis. The critical issue for the jurywas whether the complainant had consented to the penetration.

The grounds of appeal

[9]As already mentioned, the grounds of appeal relate to two aspects of the judge’s conduct of the trial: interventions during the appellant’s examination-in-chief and his summing-up to the jury. As to the first, Mr Maunder, who represents the appellant on this appeal as he did at the trial, submits that during the appellant’s examination-in-chief the judge entered unduly into the arena and intervened in the conduct of the case in a manner which was more akin to the role of prosecution counsel. In addition, a specific complaint is made about a warning given to the appellant by the judge (in the absence of the jury) that there could be serious consequences for him if, for example, he were to give evidence attacking the complainant’s character or which was inconsistent with his defence statement. It is alleged that the judge thereby created an intimidating and inhibiting atmosphere in which the appellant was prevented from telling his story freely. It is also alleged that the judge then questioned the appellant about an incident which had been ruled inadmissible in evidence, causing confusion and creating an unfair impression for the jury that the appellant was being evasive.[10]As for the summing up, Mr Maunder submitted that this was fundamentally unbalanced and that the judge developed and enhanced the arguments of the prosecution, drawing attention to evidence in their favour, some of which had not been relied on by the Crown, while at the same time omitting, explaining away and deflecting attention from evidence in favour of the defence and the appellant’s strongest arguments.[11]It is the appellant’s case that the combined effect of the judge’s interventions and unbalanced summing up may have been to influence the jury unduly in favour of the Crown and render a fair consideration of the evidence impossible.[12]On behalf of the Crown, Ms Drake accepts that some of the judge’s interventions may have been unfortunate but submits that they did not make the conviction unsafe. She submits that all the interventions were designed to clarify ambiguities or to ensure the judge had a proper note of the evidence and that it cannot be said that the appellant was unable to put forward his case or that his counsel was prevented from representing him properly. The judge’s comments to the appellant in the absence of the jury were legitimate. Furthermore, the judge did not intervene during the crucial part of the evidence when the appellant was giving his account of the sexual intercourse.[13]Ms Drake further submits that the judge summed up the evidence appropriately. The fact that he did not repeat all the points made on behalf of the appellant did not make the summing up unfair. Furthermore, the case was not finely balanced. There were real weaknesses in the appellant’s case and reminding the jury of them was also not unfair.

The Law

[14]The extent to which the judge may properly intervene during the examination and cross-examination of witnesses has been considered in a number of authorities. Those to which we were referred by counsel included R v Hulusi and Purvis (1974) 58 Cr App R 378, R v Copsey and Copsey [2008] EWCA Crim 2043 and R v Zarezadeh [2011] EWCA Crim 271. In the recent case of R v Inns [2018] EWCA Crim 1081, paras 33-38, Singh LJ (giving the judgment of this court) gave the following helpful summary of fundamental principles:
“33 First, the tribunal of fact in a criminal trial in the Crown Court is the jury and no one else. 34 Secondly, ours is an adversarial system, not an inquisitorial one. The role of the judge is therefore to act as a neutral umpire, to ensure a fair trial between the prosecution and the defence. The judge should not enter the arena so as to appear to be taking sides. … 35 Thirdly, there is nothing wrong in principle with a trial judge asking questions of witnesses in order to assist the jury. That indeed is one of the fundamental functions of the trial judge. For example, this may be done to clarify a point that may arise on the face of a document or in an immediate response to an answer that has just been given by a witness. Otherwise, it may often be preferable for the judge to wait until the end of the evidence given by that witness, or at least the end of the evidence-in-chief. Often things that are not clear may become clearer once the evidence-in-chief has been completed. 36 Fourthly, since ours is an adversarial system it is for the prosecution to prove its case and it will have the opportunity to cross-examine the defendant if he or she chooses to give evidence. It will often be unnecessary for the judge to ask any questions during the defendant's evidence-in-chief because it should be for the prosecution to cross-examine the defendant. It is certainly not the role of the judge to cross-examine the defendant. 37 Fifthly, it is particularly important that the defendant should have the opportunity to give his or her account to the jury in the way that he or she would like that evidence to come out, elicited through questions from their own advocate. If there were constant interruptions of the evidence-in-chief there is a risk that a defendant will not be able to give his or her account fully and in the manner they would wish to put before the jury. 38 Sixthly, this is not affected by the fact that the defence account may appear to be implausible or even fanciful. If it is truly incredible, the prosecution can reasonably be expected to expose its deficiencies in cross-examination and the jury will see through it. If anything, unwarranted interventions by a judge may simply prove to be counterproductive.”
[15]In summing up the case for the jury, the essential tasks for the judge are, first, to explain the law which the jury needs to apply and, second, to review the essential features of the evidence. In reviewing the evidence, the judge should seek to focus the jury’s attention on the issues of fact which they need or may think it important to decide and to remind them of the main evidence bearing on those issues. The judge must also identify the defence case. The judge is perfectly entitled to comment on the evidence by pointing out matters which may tend to support or undermine either party’s case on an issue. Nor is there any requirement that a summing up should be balanced in the sense that a judge should seek to compensate for a weak case or downplay a strong one. What is vital is, first, that the judge should not trespass on the role of the jury by telling them what conclusions they should draw on matters which are for them to determine and, second, that the judge’s review of the evidence should be objective and impartial and not skewed unfairly in favour of the prosecution (or the defence).[16]The sense in which a summing up must be even-handed was clearly explained by Simon Brown LJ in R v Nelson [1997] Crim LR 234, quoted in Archbold (2019 Edn) at 4-440, when he said:
“Every defendant, we repeat, has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury. But that is not to say that he is entitled to have it rehearsed blandly and uncritically in the summing up. No defendant has the right to demand that the judge shall conceal from the jury such difficulties and deficiencies as are apparent in his case. Of course, the judge must remain impartial. But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities … there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis. Why should pointing out those matters be thought to smack of partiality? To play a case straight down the middle requires only that a judge gives full and fair weight to the evidence and arguments of each side. The judge is not required to top up the case for one side so as to correct any substantial imbalance. He has no duty to cloud the merits either by obscuring the strengths of one side or the weaknesses of the other. Impartiality means no more and no less than that the judge shall fairly state and analyse the case for both sides. Justice moreover requires that he assists the jury to reach a logical and reasoned conclusion on the evidence.”
[17]Ultimately, on an appeal of this nature the court must stand back and assess the potential impact of any valid criticisms of the judge’s conduct of the trial on the trial as a whole. It is appropriate to ask: is there a real risk that the jury was materially impeded from considering the prosecution and defence cases fairly and reaching a just verdict according to the evidence? As Toulson LJ stated in R v Perren [2009] EWCA Crim 348 (cited in Zarezadeh, para 19):
“… if the court is driven to the conclusion that the defendant has not had a fair trial, when the matter is looked at in the round, the natural conclusion will be that the verdict is unsafe because our system of criminal justice is dependent upon the fundamental principle of the provision of a fair trial. To allow an appeal in such circumstances, even though the evidence for the prosecution may have been exceedingly strong, is not to allow an appeal on a technicality, but to allow it upon a fundamental principle which underlines our criminal justice system.”

Intervention in the appellant’s evidence

[18]Taking first the judge’s interventions when the appellant was giving his evidence-in-chief, we consider that some of the criticisms made by Mr Maunder on behalf of the appellant are valid. On occasions the judge questioned the appellant at considerable length at a stage of the proceedings when the appellant should have been allowed to give his account of events without unnecessary interruption. Furthermore, some of these interventions went well beyond simple matters of clarification and involved the kind of cross-examination which should have been left to the prosecution.[19]Although considerable reliance was placed on it by Mr Maunder, the first intervention complained of was the one which, in our view, is least open to criticism. It came about when the appellant was being asked about his text message conversation with the complainant on the day before the incident. The messages really spoke for themselves. In these messages, after the complainant had confided that her relationship with her boyfriend had been difficult since he had moved to London but that she loved him, the appellant had said:
“That’s a shame mate that’s sad to hear coz I would be there for u x”
He followed that up by saying:
“I really would I mean that x”
The exchange then continued as follows: Complainant:
“But I love him unfortunately and I’m moving xx”
Appellant:
“OK that’s fair enough mate just thought it was about time to say it to you xx”
Complainant:
“I didn’t realise you felt like that xx”
Appellant:
“Too little too late I guess xx”
Complainant:
“I’m not in the right place atm anyway mentally …”
The appellant then retreated and said:
“Well I’m here if you ever want to chat as a friend”
And a bit later:
“Wanted to tell you for ages mate hope it ain’t ruined anything xx”
The appellant then asked if they could meet up “just as friends”. Complainant:
“But I love him unfortunately and I’m moving xx”
Complainant:
“I didn’t realise you felt like that xx”
Appellant:
“Too little too late I guess xx”
Complainant:
“I’m not in the right place atm anyway mentally …”
[20]When asked during his examination-in-chief whether, in this conversation, he was expressing more than just friendship with the complainant, the appellant said that he was not seeking a relationship with her. At that point the judge intervened and attempted to pin down exactly what the appellant was saying, which proved hard to do. A wise approach, when that became apparent, would have been to leave the matter and allow counsel to move on. Instead, the judge interrogated the appellant about what the text messages showed in a series of further interventions continuing over several pages of the transcript, before finally eliciting the answer “well, like, I would have liked to have been more than friends then.” At this point the judge commented: “We got there”.[21]Not long after this the end of the afternoon session was reached and the trial was adjourned overnight. The next morning, before the appellant resumed his evidence and in the absence of the jury, the judge warned the appellant that if, when giving evidence, he were to attack the character or credibility of the complainant or put forward evidence of his own good character or introduce facts on which he had not already relied, either in his defence case statement or in interview, then those matters could have adverse consequences for him which could include his own criminal record being placed before the jury. The judge insisted that Mr Maunder speak to the appellant to ensure that this was understood. Although the giving of this warning forms part of the grounds of appeal, we do not think that either the fact that it was given or the manner in which it was given can properly be criticised. Against the background that the prosecution had agreed to withdraw two additional counts based on allegations made by the complainant, the judge was entitled to take the view that it was in the appellant’s own interests to make sure that he was aware that, if in particular he attacked the complainant’s character, this could result in his previous convictions (involving driving offences, low-level dishonesty, criminal damage and possession of drugs, but no sexual offences) being put in evidence. We do not consider that there is any reasonable basis for the suggestion that, by giving this warning, the judge created an intimidating and inhibitory atmosphere in which the appellant was prevented from telling his story freely.[22]Almost immediately after the appellant’s examination-in-chief resumed, he was asked whether during the period when everyone was socialising and drinking in the early hours there was “a sexual tension in the air”. The appellant replied that there was. The judge then intervened to ask whether there was sexual tension between him and the complainant – to which the appellant replied “not specifically”. We understand that there had at the start of the trial been discussion of how far the defence could properly go without infringing section 41 of the Youth Justice and Criminal Evidence Act 1999 in alluding to certain sexual behaviour of the complainant (but not directly involving the appellant) which had allegedly occurred that night. Section 41 prohibits the defence from adducing any evidence about any sexual behaviour of the complainant without the leave of the court. The reference to “sexual tension” was a formula that was agreed to be acceptable.[23]The appellant was next asked about an episode in which, on his evidence, two of those present, Steven and Amy, had a row and then went downstairs together. The appellant said that, when they came back up, they were happy and were dressed differently and he inferred that they had gone downstairs to the bedroom and had sex to make up. The judge then intervened to ask the appellant whether he had gone down to check whether they were in the bedroom. The judge embarked on a line of questioning apparently designed to establish that Steven and Amy might just have gone down to have a chat. In the course of this questioning, the judge referred to the fact that the appellant had himself gone downstairs at one point and had a chat with people who were in the bedroom. The appellant had asserted in his defence statement that the complainant had been kissing and cuddling on the bed downstairs with a man called Chris Fawcett. This, however, fell within the area which the appellant had been told could not be mentioned by him in evidence because to do so was prohibited by section 41.[24]When asked by the judge who he had seen in the bedroom when he went downstairs, the appellant identified the complainant, Chris Fawcett and Steven but added “thought I’d been told not to speak about that”. The judge continued to ask about it, while remarking that “it’s the first we’ve heard of it” and that “we have not heard anything about it at all. It’s not been suggested at any point to anyone, so tell us when that occurred.” We agree with Mr Maunder’s submission that the result of this exchange was to make the appellant look evasive, and for no proper reason. Having first asked the appellant about an episode which he ought not to have been asked about, the judge then made it look as though the appellant was to be criticised for not having mentioned it before.[25]At this point Mr Maunder reminded the judge that this was one of the matters that he had made a ruling about. Yet instead of leaving off at that point, the judge diverted his questioning to how the appellant knew that Amy and Steven were in the bedroom, when he had not gone downstairs himself and seen them there. He pressed the appellant on whether or not he had heard the bedroom door shut. In our view, there was no warrant at all for this whole line of questioning, which should have been left for prosecuting counsel to raise in cross-examination, if it was thought relevant at all.[26]A little later when the appellant started to give evidence about the period when he and the complainant were alone in the house, having previously said that he had not been quite sure whether the complainant was awake or asleep, the appellant said that she woke up when Chris Fawcett and Alan Morgan went out to go and buy drugs and the door slammed. The judge intervened to interrogate the appellant about whether or not the complainant was awake before the door slammed. He did not get a definite answer – the appellant essentially saying that he did not know whether the complainant was awake or not before the door slammed but that it was clear that she was awake afterwards. The judge would not let go of the point and pursued it for some time, cross-examining the appellant about it. This would have been improper whatever the importance of the point. The judge’s conduct is particularly hard to fathom in relation to what seems to us to have been a matter of very little consequence.[27]After that, however, when the appellant gave evidence about the critical events which occurred when he and the complainant were alone together and about having sexual intercourse with her, the judge did not intervene again, other than to ask one or two questions of a purely clarificatory nature. Nor is any complaint made about any interventions made by the judge during the appellant’s cross-examination by counsel for the prosecution.[28]In summary, we consider that the judge on several occasions during the appellant’s examination-in-chief overstepped his role and pursued questioning which went beyond simple clarification and delved into matters which should have been left for the prosecution to explore, if thought appropriate, in cross-examination. That was wrong, first because it interfered with what should have been the appellant’s opportunity to tell his story without unnecessary hindrance before it was subjected to critical questioning and, secondly, because such critical questioning was the business of the prosecution and not the judge.[29]That said, we do not accept that the judge’s interventions, misplaced as some of them were, went so far as to prevent the appellant from getting across in his own words, and in response to his counsel’s questions, his account of what happened and, in particular, his account of the critical events in the period when he was alleged to have raped the complainant. We have also rejected the suggestion that the judge created an intimidating atmosphere by the warning that he gave to the appellant. Mr Maunder realistically accepted that it would be difficult to argue that judicial intervention in the appellant’s examination-in-chief had, by itself, a material effect on the trial. We agree. The appellant’s case, however, is that such intervention must be viewed in combination with the summing up. So to this we now turn.

The summing up

[30]Mr Maunder on behalf of the appellant does not suggest that there is any palpable flaw in the summing up or that individual criticisms made of it, considered on their own, are of great weight. But he submits that, when the judge’s summing up of the evidence to the jury is viewed as a whole, it can be seen to have been unfair in that, throughout, the judge amplified the prosecution case and brushed aside or undermined the defence case. Mr Maunder described the overall effect as “death by a thousand cuts”.[31]Without overlooking the nature of the case advanced and the need to evaluate the summing up as a whole, we think it useful to consider first of all the three parts of the summing up about which particular complaint has been made. The first is the judge’s treatment of what the defence alleged were inconsistencies in the accounts of having been raped which the complainant gave to other witnesses very shortly after the incident occurred. The alleged inconsistencies were based on the evidence of the witnesses to whom the complainant spoke: Jean Morgan, when the complainant ran upstairs to her flat; Alan Morgan, when he got back to the house a little later; and a care assistant at the hospital called Katrina Lewis. The main point made by the defence was that the complainant had not recounted to those witnesses details which she gave when interviewed later on 6 August 2017 of how the appellant was allegedly grabbing her thighs and touching her, and how she was allegedly struggling to try to stop him, when she woke up to find him on top of her having sexual intercourse with her.[32]We see no real substance either in the discrepancies on which the defence was seeking to rely or in the criticisms made of the way in which the judge summed up the relevant evidence. The judge reminded the jury of the relevant evidence given by each of the three witnesses of what they recalled the complainant saying to them. The judge did not spell out the respects in which the various accounts differed from or omitted details given in the complainant’s video recorded interview. But those points had been highlighted in the defence speech which the jury had just heard. The judge quite properly pointed out to the jury that the witnesses’ recollections of what the complainant had said to them might or might not be complete and accurate. He could very well also have observed – although in fact he did not – that there might be reasons of embarrassment or distress which would naturally deter a complainant in the immediate aftermath of a sexual assault from giving as full and graphic an account of what had happened to people she knew as she later gave when taken slowly and carefully through the full history of events in a 50 minute interview.[33]The second part of the summing up of which particular criticism is made concerns the way in which the judge dealt with certain agreed facts about findings made on a medical examination of the complainant. It was an agreed fact that the doctor had found a series of scattered small bruises mostly over her thighs, knees and legs. It was agreed that she had reported to the doctor that these were caused during the alleged rape – a matter about which she had not, however, been asked any questions when she gave evidence. A genital examination revealed tenderness on the right side of the vulva, but no evidence of a tear or any other injury. It was agreed that the medical findings neither confirmed nor refuted the allegation of rape.[34]The judge reminded the jury of this agreed evidence and pointed out on a body diagram which was also agreed to be accurate where the injuries had been found. He suggested that, although the medical findings could not prove the allegation of rape, the jury could conclude that the findings were consistent with the allegation and indeed supported it, much as a finding that a person has a bruise on his chest would be capable of supporting, although not proving, an allegation that he had been punched in the chest. Mr Maunder’s main criticism of these comments is that the bruises found on the complainant’s body were not in the places where she said that she had been gripped by the appellant, which was around her hips and bottom. Nor had she given any explanation of how the bruises were allegedly caused during the assault. It is true that the judge did not remind the jury of the point made by the defence about the location of the injuries, which again they would have just heard in the defence speech. But there had been no suggestion when the complainant gave evidence that her report to the doctor of how the injuries were caused might have been mistaken nor that there might have been some other event which could have caused her injuries. We do not consider the comments made by the judge about the inferences which the jury was entitled to draw from the medical evidence to be unfounded or unfair.[35]The third part of the summing up about which particular complaint is made is the way in which the judge dealt with the appellant’s police interview. The judge went in some detail through the interview transcript and invited the jury, as he did so, to note in the margin a series of “titles”, as he called them, which each related to a point where what the appellant had said was in conflict with other evidence or otherwise arguably adverse to his case. Examples are invitations to the jury to write “bruises” in the margin where the appellant was asked whether he had any explanation for the complainant’s bruises and said he did not, and “crack cocaine” where the appellant had suggested that the reason why he left the flat in a hurry was that he thought that Alan Morgan and Chris Fawcett had gone to buy crack cocaine, which he did not want to have any part in, and for that reason was anxious to be gone before they got back. The judge pointed out that the appellant had said earlier in the interview simply that they had gone to buy cocaine, without suggesting that he had any problem with this or that they might be getting crack cocaine.[36]This part of the summing up, like much of the rest of it, was certainly adverse to the appellant. But we do not think that it went beyond the bounds of legitimate comment, drawing the jury’s attention to matters which they would be entitled to regard as difficulties with the defence case. It is also right to say that the judge asked the jury more than once when considering the interview transcript to bear in mind that the appellant was under huge pressure and would inevitably have been frightened at the time when he was being interviewed. The judge also stressed that the account that the appellant gave in interview of the actual sexual activity between himself and the complainant was consistent with the account that he gave under cross-examination. Moreover, the judge followed his summing up of the interview by reminding the jury in considerable detail and largely without comment of the evidence which the appellant had given in court.[37]Widening the lens to the summing up as a whole, we do consider that there were some comments and characterisations of the evidence made in the course of it which can fairly be criticised. As an example which gives the flavour of these passages, this is how the judge summarised evidence given in response to two of his interventions in the appellant’s evidence-in-chief discussed earlier:
“[The appellant] said that there had been sexual tension in the air but that there was no sexual tension between he and [the complainant] and he described how he thought that [Steven] and Amy had gone downstairs and he even said at one point he heard the door close to the bedroom and then agreed he hadn’t heard the door close to the bedroom.”
This, in our view, was a somewhat unfair portrayal of the relevant evidence. There are some other passages about which similar, comparatively minor criticism can be made.[38]We do not, however, accept the central submission made on behalf of the appellant that the summing up was fundamentally unbalanced. In our view, that submission wrongly attributes to partiality of the judge what was in reality a substantial imbalance in the strength of the prosecution and defence cases. This was a trial in which the only real issue was whether the complainant was telling the truth in saying that she woke up to find herself being raped or whether the appellant was telling the truth in saying that they had consensual sex in which she actively and willingly participated. In assessing where the truth lay, there were a number of matters which could reasonably be thought strongly to support the prosecution case and to undermine the defence case. These included:(1) The prior exchange of text messages which indicated that the complainant had no sexual interest in the appellant, whereas he had appeared to show such an interest in her;(2) The fact that, immediately after sexual intercourse had ended, the appellant left the flat in a hurry, even leaving his underpants behind;(3) The fact that, immediately after the appellant had left the flat, the complainant ran upstairs, half dressed and in a state of great distress according to the evidence of Jean Morgan, and told Jean Morgan that she had been raped;(4) The findings made when the complainant was medically examined;(5) The detailed account of what happened which the complainant gave in her video recorded interview on the same day;(6) Numerous inconsistencies and implausibilities in the appellant’s evidence which included – to give just two examples – the fact that the appellant asserted for the first time in his evidence in court that before they had sexual intercourse he had expressly asked the complainant for her consent by saying words to the effect of “Are you all right with this?”, and the improbable explanation that he gave for leaving the flat in such a hurry.[39]It was appropriate and fair for the judge to bring out in summing up these difficulties and inconsistencies in the defence case. To do so did not demonstrate partiality or bias in favour of the prosecution and, for the most part, was calculated to assist the jury in evaluating the evidence. Furthermore, the judge reminded the jury of the evidence relied on by the defence as well as that relied on by the prosecution, including ending the summing up with a full summary of the appellant’s own evidence. Such inaccuracies as there were in the way the evidence was summed up were minor, and cannot in any event give rise to legitimate complaint on an appeal when they could and should, if thought material, have been pointed out at the time to enable them to be corrected. We agree that the judge did downplay or omit to mention a number of arguments on which the appellant placed reliance. The defence had a fair opportunity, however, to make those arguments to the jury who could give them such weight as they thought fit. None of those arguments which has been drawn to our attention on this appeal was in our view of such substance that, as part of a fair summing up, they required repetition or further emphasis by the judge.

Conclusion

[40]It is a matter of concern and regret that during the appellant’s examination-in-chief the judge on several occasions interrupted his evidence by pursuing lines of questioning which were, at best, unnecessary and in some instances improper. Nevertheless, we do not consider that these interventions, in their nature and extent, were so significant as to materially impair the ability of the appellant to give his own account of the relevant events to the jury in his own words. Nor do we consider that the judge’s conduct in this respect, either in itself or in combination with such deficiencies as there were in the summing up, can be said to have deprived the appellant of a fair trial or to make his conviction unsafe. Accordingly, we dismiss the appeal.

Cited in 5 later judgments