Davarifar v R

On 5^th October 2007 in the Crown Court at Kingston before H.H.J. Campbell the applicant was convicted of Rape contrary to section 1 of the Sexual Offences Act 2003. On 2^nd November 2007, he was sentenced to 6 years’ imprisonment (with time spent on remand to count towards sentence). He was made subject to a Sexual Offences Prevention Order pursuant to sections 104 and 106 of the Sexual Offences Act 2003 with a prohibition from seeking to gain employment as a taxi driver for a period of 15 years. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, the applicant was required to comply with the provisions of Part 2 of the Act (Notification to the police) indefinitely.

On 7 May 2009, following refusal by the single judge, the full Court granted the appellant leave to appeal against his conviction. We heard his appeal on 28 October 2009. We dismissed his appeal, and said that we should give our reasons for doing so subsequently. These are our reasons for dismissing the appeal.

The complainant, GS, alleged that the appellant had penetrated her mouth with his penis, against her will. The appellant’s case was that nothing untoward had occurred. They had previously had consensual sexual intercourse, and on the evening in question he expected them to do so again. We shall summarise the salient evidence later in this judgment. Both GS and the appellant gave evidence. The essential issue for the jury was whether they accepted her evidence.

The judge’s summing up could not be and is not criticised. However, after the jury had retired, counsel then acting for the appellant (who was not his present counsel) mentioned to the judge that the prosecution had disclosed evidence relating to an earlier and unrelated allegation of sexual abuse made by GS. Counsel did not suggest that there was evidence that that allegation had been false. He said that it suggested that she might have had a motive for making a false allegation against the appellant, namely to “increase her credibility and to increase her sense of well-being because of her fear of not being believed in relation to the other complaint”. He said that he would have wanted to ask GS questions about her earlier allegations, but accepted that it was then too late to do so. The jury returned. The previous evening they had asked for the 999 call made by GS to be played again. That was done. The jury retired and after a short time returned a unanimous verdict of guilty.

Leave to appeal was given on the basis that it was arguable that the evidence relating to the earlier allegation made by GS provided a proper evidential basis for contending that it was false; that the allegation that the earlier allegation was false could and should have been put to GS in cross-examination; that if she had insisted that the earlier allegation was true, there was evidence from which the jury could infer that it was untrue; and if they did so infer, that might have affected the credibility of her allegation against the appellant and would have been capable of leading to his acquittal.

Leaving aside the question whether it is right, in these circumstances, to allow his appeal against conviction on the ground of his counsel’s error at trial, the issues on this appeal are:

The evidence relating to the earlier allegation of sexual abuse was as follows:

For the appellant, Miss Darlow, who was not trial counsel, submitted that the following matters provided an evidential basis for alleging that the allegation against DW was false:

It follows from the decision of this Court in T and H [2001] EWCA Crim 1877 [2002] 1 WLR 632 that questions about false statements in the past by a complainant are not “about any sexual behaviour of the complainant” within the meaning of section 41 of the Youth Justice and Criminal Evidence Act 1999; that provided the defence have a proper evidential basis for asserting that her previous allegation was false, they may cross-examine her on the matter; and it may follow from V [2006] EWCA Crim 1901 that, subject to section 100 of the Criminal Justice Act 2003, the defence may adduce evidence in rebuttal of her assertion that the allegation was true. What is meant by a proper evidential basis was explained by this Court in Murray [2009] EWCA Crim 618: it is evidence on which the jury could be satisfied that the previous allegation was false. One can see that if the complainant’s previous allegation was well founded, the questions may become questions about her previous sexual behaviour, i.e., questions to which section 41 applies. Given that at the stage that these matters are addressed in evidence, it is not known whether the allegation was true or not, the result is not very satisfactory; but that seems to be the position.

Generally, it seems to us that the evidence that the allegation against DW was false was not strong. We do not accept that the opinion of the CPS is relevant. It is for the court to decide whether there is a proper evidential basis for asserting that an allegation is false; the opinion of anyone else, including the CPS, is irrelevant. The appellant's best point is the contradiction that between Hayley Rabin and GS. We are prepared to assume that the material provided a proper evidential basis for alleging that the allegation was false.

However, it is necessary to note that it is not contended that the allegation, if unfounded, was necessarily a deliberate lie on the part of GS. Ms Darlow contended that it might equally have been the product of GS’s alcoholism and personality problems. If it was alleged that the previous allegation was a deliberate lie, section 100 clearly applied. If, however, the previous allegation, if false, was the product of GS’s personality problems, it is less obvious that it constituted “reprehensible behaviour” and therefore misconduct as defined in section 98. Given the significant differences between the allegation against DW, which was of historic sexual abuse, and that against the appellant, which was made immediately after the alleged incident, it is far from clear that it had substantial probative value as to GS’s credit (as required by section 100(1)(b)), but again we assume that the appellant would have been able to surmount this hurdle. We also assume that the prosecution would not have been able to adduce the evidence of Ms Rabin and Dr Brady as to GS’s veracity, although it does seem to us productive of unfairness, in giving the jury a misleading impression of GS, if the allegation of a deliberately false allegation is made without that evidence.

The facts

It was common ground that the appellant and GS were known to each other. She was a recovering alcoholic. On the evening of 12 September 2006 the appellant telephoned her and she invited him to her first floor flat in Teddington. During the course of the day she had drunk two pints of Kronenburg and one pint of Stella. He arrived between 9:15 and 9:30 pm with two bottles of wine. According to GS, she thought something ‘dodgy’ was going on and texted her friend to ask her to phone her every ten minutes. They sat on the sofa and he ‘pounced’ on her. He tried to grope her breasts and kiss her. She pushed him off and told him to stop. She asked him for a cigarette and, as he did not have any, they walked down to the local supermarket to purchase cigarettes. It was about 10:00 pm and the supermarket was shut. CCTV showed them leaving the supermarket at 9:57 pm. On the way he groped her again and she pushed him off.

They returned to her flat. She was scared of him and she did not want to let him back in, but he had left things there. They sat on the sofa and he pulled her head back by her ponytail, jumped on her and tried to kiss her. She pushed him off and he hit her round the face. He told her to give him a ‘blowjob’ and started hitting her again. He pulled out his erect penis and made her put it in her mouth. He told her, “Do it as if you’re enjoying it” and started hitting her again. Her friend rang her mobile phone. He tried to grab it and she told her to come to the flat. The applicant did his flies up and she ran out of the flat, without her keys, to her friend’s house. On the way she rang 999. The call was logged at 10:09 pm. She can be heard crying and hyperventilating and later being sick. She said that she had been abused, that her assailant had wanted her to give him a blowjob, pushed her head and slapped her around the face.

GS’s friend NG gave evidence that on the evening in question GS had told her that she was with a man and was worried about the situation. She asked NG to keep telephoning her, and she did so. NG became more concerned after the second or third telephone call. In all she telephoned or texted GS between seven and 15 times. By the penultimate telephone call, she could hear that GS wars really agitated. In the last telephone call, GS had told her to come to her flat quickly. GS arrived at her house five or 10 minutes later. She was "in a state". Her face was bright red and she was hyperventilating and could not speak properly. She had quite a lot of bruising under her left and right eyes. GS told her that she had been sexually assaulted: the man had got back into her flat and had "put his cock into her mouth." He had abused her, slapped her, and said, "Look like you're enjoying it."

Although a police doctor found no injuries to GS’s face, when DS Gregory saw her on 14 September 2006 he noticed injuries to her cheekbone sufficient to make him request photographs. When shown those photographs, the doctor noted that there might have been a bruise under her right eye.

GS’s downstairs neighbour gave evidence that on the night in question she heard shouting and banging from GS’s flat, the front door slamming and what sounded like someone falling down the stairs.

Police officers gave evidence that when they arrived at NG’s house, GS was upset and crying and had a very red face. She told them that a man she knew as Jay had forced his penis into her mouth. The SOIT officer went to NG’s house, and GS told her what had happened. The officer saw a number of text messages sent by GS to NG asking her to telephone her.

The appellant, when seen by the police, was sufficiently drunk for the police doctor to say that he could not be interviewed until the following morning. However, he told PC Good that he had slept with GS on previous occasions: the officer was sure that he used the plural.

In interview, the appellant said that he had had sex with GS on one previous occasion. He was able to give a largely accurate description of the room where she had previously lived. He said that on the evening in question he had gone round to her with 2 bottles of wine. He said that they were kissing and fondling, and she unzipped his trousers and wanted to suck his penis. He said, “No, stop, let’s go and get some condoms.” They needed cigarettes and more drink too, so they went to Tesco’s. On the way there, we were having a kiss, we were having a cuddle …. We got there and we didn’t even buy the condoms. We just bought the drink and the cigarettes.”

The appellant gave evidence generally consistent with his interview.

Discussion

Miss Darlow submitted that the evidence of what would have been asserted to have been a false allegation against DW would have affected the jury’s consideration of the essential issue, the credibility of GS, on whose evidence the prosecution entirely depended. It followed that the conviction could not be regarded as safe. The appellant had been deprived of a fair trial, and should have the opportunity of a fair re-trial at which the omitted evidence could be adduced.

For the prosecution, Miss Strudwick submitted that the case against the appellant was so strong that the material on which he now sought to rely could not reasonably have led to an acquittal.

This was a very strong case. That the appellant was drunk at the time of the alleged incident could not be disputed. That GS was worried about his behaviour was evident from her telephone contacts with NG. The appellant had no explanation for the action of GS in fleeing her flat, without her keys, in what was manifestly a state of considerable distress, and immediately making a 999 call. His difficulty in explaining her action is compounded by his allegation, which she denied, that she had herself tried to initiate oral sex earlier that evening. GS’s accounts of the incident, made immediately afterwards, were all consistent. Her evidence was consistent with that of her neighbour; the appellant’s was not. A previous allegation, even if false, of historic sexual abuse would not have explained any of these matters.

It is in our judgment not surprising that the jury, having asked for the recording of the 999 call made by GS to be replayed, shortly returned their verdict shortly after hearing it again.

The jury were aware that GS’s evidence was not wholly reliable. She had denied giving the appellant her land line telephone number; she clearly had, since his telephone records showed he had dialled it. She denied that he had visited her in her hostel room, where he said they had had sexual intercourse. Since he was able accurately to describe that room, the jury were aware that on this matter too GS’s evidence was unreliable. The judge warned the jury to be very cautious in their approach to her evidence if they accepted that she may have been wrong about his visit to her at the hostel. The major differences between the allegation against DW and the facts of the allegation against the appellant affected the materiality of the former to the latter.

Accordingly, we concluded that even if the material now sought to be deployed on behalf of the appellant had been before the jury, or were now to go before a jury, there was and is no real prospect of his acquittal.