M, R. v

LORD JUSTICE MOORE-BICK: On 23rd August 2005 in the Crown Court at Inner London before His Honour Judge Quentin Campbell the appellant was convicted of two counts of rape by a majority of 11 to 1 and sentenced to three years' imprisonment on each count to run concurrently. He now appeals against conviction by leave of the single judge.

The complainant in this case was the appellant's wife. On 27th February 2004 a marriage took place in India between the appellant and the complainant who had met on only one occasion prior to the wedding, it being an arranged marriage. They spent two weeks together in India and there was a significant dispute at the trial as to whether the marriage had been consummated during that period. The appellant said that it had been; the complainant said that it had not. At any rate, if it was, sexual intercourse occurred on only one occasion during that period.

In March 2004 the appellant returned to this country. His wife remained in India to obtain an entry visa for this country and to complete her studies.

In September 2004 the appellant and his father travelled to India to collect his wife and they arrived back in this country on or about 12th September. The appellant and his wife lived in the family home at Feltham together with his parents, his brother and his sister-in-law.

The complainant said that from the outset the appellant had treated her with indifference and neglect. She also complained of overbearing behaviour and ill-treatment on the part of his parents after she came to this country. She said that there had been no sexual intercourse between them prior to the date of the offences in October 2004.

All those allegations were denied by the appellant. He, his parents, his brother and his brother's wife, all of whom gave evidence at the trial, said that he and his wife got on well and that no-one had ill-treated her. The appellant said that sexual intercourse had taken place between them with her consent on two occasions, once in September and once early in October. The complainant denied that. She said that sexual intercourse had taken place between them for the first time on or about 14th October, without her consent, and again on a second occasion on or about 15th October, also without her consent.

On 19th October the complainant went to the local temple which she was attending in order to have lessons in English. She was met there by one of her relations with whom she then departed. She left the family home that day taking with her some jewellery. According to the complainant she went to a police station at Hounslow to make a complaint of rape but was told to return the next day. That night she went to stay with her relatives in Luton.

The complainant said that on 20th October she went to another police station, again to make a complaint of rape, but was told to return the next day when it would be possible for her to make a statement with the assistance of an interpreter. Accordingly, on 21st October she went back to the police station at Luton where she was seen by a Police Constable Chand who spoke to her for about an hour, took a note of her complaint and took down her account in his notebook. He then referred the matter to specialist officers for further investigation.

Meanwhile, on 20th October, the appellant's family had contacted the police in order to inform them of what they alleged was the theft of jewellery from their home. Some time after that (the precise date has not been ascertained) the police contacted the complainant to inform her of that allegation. It is uncertain whether that occurred before or after she made her complaints of rape against the appellant.

At all events, in due course on 15th November 2004 the appellant was arrested and after being interviewed he was charged with two offences of rape. In due course, as we have said, he was convicted of those offences at the Inner London Crown Court.

The grounds of appeal in this case fall under three main heads. The first is that the judge failed to direct the jury properly on the need to give separate consideration to each of the two counts in the indictment. The second comprises a number of respects in which it is said that the lawyers representing the appellant failed to conduct his case in a competent manner with the result that the convictions cannot be regarded as safe. The third ground of appeal is that certain hearsay evidence was admitted without compliance with the statutory safeguards to the prejudice of the appellant.

As to the first of these grounds, although it was common ground at the trial that sexual intercourse had taken place on two occasions after the complainant had come to this country, there was a significant conflict about when and under what circumstances that had occurred. When the complainant made her statement to Constable Shand she said that she had been raped on one occasion. It was only when she made her written statement some days later that she alleged that she had been raped on a second occasion a day later. There was another discrepancy in her evidence in relation to the second of these occasions. In her written statement she said that the appellant had had sexual intercourse with her while she was asleep and that she had woken up after the act was complete. She said she could not remember the act of penetration. In her evidence at the trial, however, she said that she had been awake at the time and described how the appellant had removed her clothing before he had had sexual intercourse with her.

In the course of his summing-up the judge said that he would normally give a jury a clear direction to consider each count in the indictment quite separately and that it was in any event necessary for them to reach separate verdicts in relation to each count on this occasion. However, he then said that, having regard to the evidence in the case, they might think it inconceivable that they would find one allegation proved and one disproved.

Mr Anthony Donne QC submitted on behalf of the appellant that, because of the discrepancies in the complainant's accounts in relation to the second alleged rape, this was a case which called for a full direction to the jury as to the importance of considering each count in the indictment and the evidence relating to it quite separately. He submitted that there was a danger in the present case that the judge’s comment suggesting that it was unlikely that they would reach different verdicts on the two counts of the indictment may have led the jury to reach a decision on the first count and, having done so, to assume that the second count was proved as well without examining the evidence in relation to it with care.

This was clearly a case which turned on the credibility of the appellant on the one hand and the complainant on the other which in each case had to be judged in the light of the evidence as a whole. In theory, of course, the jury might have convicted on one count and acquitted on the other, but having regard to the nature of the case and the evidence before them it seems to us that it was inherently unlikely that they would reach the conclusion that the complainant had given truthful evidence about one of the two events and untruthful evidence about the other. Moreover, we think it highly unlikely, given the nature of the case, that any jury would have considered count 1 without also taking into account the evidence in relation to count 2, particularly in the light of the fact that the complainant had been fully cross-examined as to the discrepancies in her accounts of the second incident. If the discrepancies in her account of what occurred on the second occasion had led the jury to reject her evidence in relation to that count, it would have provided them with strong grounds for rejecting her account of what took place on the first occasion as well, and we do not think that they could fail to be aware of that.

In our view the judge would have been wiser to direct the jury on the need to give separate consideration to each count in the indictment in the usual terms, but the fact of the matter is that his comment did no more than reflect the reality of the situation and we are not persuaded that the nature of the direction that he did give renders the appellant’s convictions unsafe.

Mr Donne submitted that those acting for the appellant failed in a number of respects to conduct his defence as they should have done and that as a result the convictions are unsafe. When the appellant gave evidence he referred to a number of matters which might have been of some importance in throwing light on the nature of the relationship between himself and his wife. They included, first, the purchase of a new double bed for them both on 2nd October, two days before the appellant said that they had had consensual sexual intercourse; second, the arrangements that were being made for a party on 4th December for 400 or 500 people to celebrate their marriage; and third, the discovery of what was called at the trial a "love card" sent to the complainant by someone other than the appellant. None of these matters was put to the complainant in cross-examination. The omission was raised by the judge after the appellant had given evidence and it appears that he had some concern about the failure to put them to her.

Mr Donne submitted that the judge made his intervention because he was anxious to ensure that the defence case was put forward to best advantage. However, that is not how we read his remarks. In our view it is clear from his comments that the judge was concerned that the complainant had not had an opportunity to deal with the allegations which had been raised for the first time by the appellant in the course of giving his evidence.

Another piece of evidence that emerged at a very late stage was a card that had been sent by the complainant to the appellant after he had returned to England and while she remained in India. It is a card written in good English in very affectionate terms but at a time when the complainant said the relationship was an unhappy one. It is a matter to which we shall return in a moment.

The next item of evidence concerned a wedding party which the complainant attended with other members of the family on 15th and 16th October, that is, only a day or so after the first of the alleged rapes. A video recording was made of the party which showed, among other things, the complainant apparently in a relaxed state of mind and enjoying herself. However, although it might have been said that the video tended to undermine the complainant’s account of her relationship with the appellant and of the rapes, it was not put in evidence and the complainant was not asked about it.

Evidence was also given by the appellant's sister-in-law, RS, who had made a statement in which she dealt, among other things, with the issue whether the marriage between the appellant and the complainant had been consummated while they were in India. The complainant said that the marriage had not been consummated during that time and that she had told the appellant's sister-in-law of that fact. However, in her written statement RS had indicated that she would deny that the complainant had said that the marriage had not been consummated in India. In the event, however, she was not asked to deal with that matter. Mr Donne submitted that the appellant’s counsel was at fault in this respect and should have asked the witness directly whether the complainant had told her that the marriage had been consummated in India. She would then have said that she had not. It may be that there was an omission in this respect but we are not persuaded that it was of great significance in this case.

The appellant said that there were two other respects in which his lawyers had failed to prepare or present his case properly. The first related to the complainant’s evidence that she had gone to a local police station at Hounslow on 19th October to report the rapes but had been turned away. It was said that no attempt had been made by the appellant's lawyers to obtain any evidence of whether a complaint of that kind would ordinarily have been recorded.

The second concerned the complaint about the theft of the jewellery. Following the departure of the complainant from home on 19^th October the appellant’s family made a complaint to the police on 20th October that she had stolen jewellery from them and as a result the police telephoned the complainant at the address of her relations in Luton in order to obtain her comments. It might have been significant to know whether that telephone call was made before she made her allegation of rape against the appellant or afterwards, but the appellant's lawyers appear not to have investigated the matter or to have obtained evidence to identify exactly when that telephone call took place.

Counsel who appeared for the appellant at the trial has been asked to comment in the usual way on the criticisms that have been made of him. He has said that he had difficulty in obtaining proper instructions from the appellant. For example, he says that the evidence of the purchase of the bed was not mentioned until after the complainant had finished giving her evidence and that the card that the complainant had sent the appellant from India was not produced until after the close of the defence case. We have no reason not to accept what he says about those matters. It is difficult, therefore, to criticise counsel's for failing to put matters of this kind to the complainant in cross-examination. It is true, as Mr Donne submitted, that the jury was deprived of the opportunity of seeing her response to these and other matters, but in the absence of any supporting material there is no reliable basis for concluding that the effect of putting them to her would have been beneficial to the applicant's case. Other criticisms, such as the failure to obtain evidence of whether a complaint of the kind that was said to have been made to the police on 19th October would have been recorded and the failure to obtain evidence of the time at which the police called the complainant to ask her about the allegation of theft, are of uncertain significance unless one has some basis, which we do not, by which to judge what any such enquiries would have disclosed. In the case of the complaint to the police on 19^th October, we are conscious that the absence of evidence allowed the defence to comment to the jury in a way that might not otherwise have been possible.

It is fair to say that at first sight the card which the complainant sent the appellant from India is potentially of greater significance because it tends to undermine her account of the nature of the relationships between them at that early stage. However, as we have already indicated, this piece of evidence emerged very late in the day and in order to adduce it would have been necessary for counsel to apply to reopen the defence case. That raised considerations of a kind that he would not have had to confront if it could have been deployed in the normal course of the trial. Counsel who appeared for the appellant at the trial has explained that he took the view that it was not appropriate to make an application of that kind. Mr Donne submitted that this was such an important piece of evidence bearing on the credibility of the complainant that the omission to adduce it renders the conviction unsafe.

If the card had been in counsel's hands from the outset we think it likely that he would have made use of it and would have put it to the complainant in cross-examination, though the course he took with it might well have depended on how she responded to his initial questions. However, it was not so important in our view that it justified applying to reopen the defence case and thereby risking giving it an importance that it might not ultimately bear. It seems very unlikely that the card was written by the complainant herself, since her command of English at the time when she came to this country was said to be very poor, and although it was couched in affectionate terms, it was sent at a time when the couple had recently married and the complainant was hoping, and no doubt intending, that the marriage would be successful. Its terms are entirely consistent, in our view, with such an attitude on her part. We are not persuaded that the omission to deploy the card in evidence renders the convictions in the present case unsafe.

Finally, it is necessary to deal with a matter that was mentioned by prosecuting counsel in the course of his final speech. One of the complainant's relations, GK, had made a statement in which she spoke of a telephone conversation with the complainant's mother at a time when the complainant was still in India. As recounted in her statement, the complainant's mother had confirmed that the marriage had not been consummated at that time. When GK gave evidence, however, she mentioned that the telephone conversation had taken place, but did not recount any details of the conversation.

In the course of his final speech, counsel for the prosecution referred to the telephone conversation between the complainant's mother and GK. He suggested that there had been some discussion between them about the complainant's unhappiness and the reasons for it. Mr Donne submitted that counsel had effectively told the jury that the complainant's mother had told GK that the marriage had not been consummated while the couple were in India and that that was a serious error because by doing so he placed before the jury information which the court had previously been astute to ensure was withheld from them.

We are unable to accept that view of the matter and, even if it were correct, we should have been unable to attach to it the significance suggested by Mr Donne. In the first place, as we read the transcript of counsel's speech, he did not go as far as Mr. Donne submitted. One might debate at some length what nuances are to be attached to the language that he used and in particular to the reference he made in that context to the "non-relationship" between the complainant and the appellant, but the passage is a short one in counsel's speech and was in any event overtaken by the judge's reminding the jury of the evidence that had actually been given in the course of the trial. In our view there is nothing there of sufficient significance to render the convictions unsafe.

Mr Donne very properly submitted that all these matters are of cumulative effect and one can well understand that there are circumstances in which a number of matters, each of relatively minor significance, do, when taken together, leave the court satisfied that a conviction is unsafe. In our view, however, this is not one of those cases. We have to decide, viewing the matter overall, whether these convictions are unsafe and despite all that Mr Donne has urged upon us we are not persuaded that they are. In those circumstances the appeal must be dismissed.