Benabbou, R. v

MR JUSTICE MADDISON: On 25th October 2011 the appellant, Fouad Benabbou was convicted of offences of sexual assault and assault by penetration. On 1st December 2011 he received extended sentences amounting in all to eight years' imprisonment, of which the total custodial term was four years. He appeals against his convictions by leave of the single judge.

The complaint of sexual assault arose in the early hours of the morning of 6th March 2010. The prosecution's case was that the complainant was asleep in the bedroom of her boyfriend's flat. A number of people, including the appellant, arrived at the flat for an impromptu party. The complainant remained asleep and was unaware that a party was taking place. However, she became aware of a man entering the bedroom and asking for a cigarette. A little later she was aware of being pulled on top of a man, straddling him. The man said: "You're really fit" and touched her left breast. She realised that it was a man that she did not know and she ran from the room. Later she saw a man being asked to leave the premises and recognised him as the man who had assaulted her. She subsequently identified the appellant at an identification procedure.

His case at trial was that nothing had happened between himself and the complainant at all. If anything had happened to her in the bedroom it had been done by somebody else and he had been falsely identified and accused.

This allegation was first tried in February 2011 and the jury failed to agree. The appellant was released on bail pending a retrial.

The complaint of assault by penetration arose on 16th April 2011. The complainant in that case was in a relationship with another woman. The prosecution's case was that the two of them went to the appellant's shop to buy a television aerial and mentioned in passing that they were having trouble with rats at their flat. The appellant offered to assist them and visited them in the flat. However, when he attended all three of them drank a lot of alcohol and embarked on a game called "truth or dare". The eventual outcome of this game was that the appellant had no clothes on and the two women were dressed only in their underwear. The appellant kept pulling the bras of the two women down.

At the later stage, he climbed into a bed and fell asleep, or at least pretended to do so. Later, at a time when the complainant was alone with the appellant in the bedroom, he grabbed her legs and pulled her towards the bed. He was touching himself and he was telling her to be quiet. He tried to open her legs. He put his hand down her underwear. He rubbed her vagina in a way that she described as quite vicious and put his fingers into her vagina, though only, on her account, to a slight extent. He stopped what he was doing when he heard the complainant's partner returning.

At trial the appellant's case in relation to this second allegation was that nothing had happened between himself and the complainant and that she and her partner had fabricated their accounts to cover up the fact that they had stolen his mobile phone and had also stolen about £100 in cash from him.

These two offences were originally charged in separate indictments. However, at a pretrial hearing on 12th September 2011 the prosecution applied to the trial judge, His Honour Judge Ralls, to join the two indictments. On behalf of the defendant, Mr Whitehouse opposed the application but submitted alternatively that if the indictments were to be joined then the ensuing joint indictment should be severed to allow the two allegations to be tried separately in any event.

The judge granted the application to join the two indictments and it is accepted on behalf of the appellant, rightly in our view, that the judge was entitled to do so. The judge also declined to sever the indictment and it is submitted to us that he was wrong in that regard.

Section 5(3) of the Indictments Act 1915 provides as follows:

This provision has been considered in a large number of authorities. In one of the better known, Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 41, Lord Pearson said as follows:

It does appear from these remarks that the judge contemplated that the evidence relating to one offence would or might well be admissible in relation to the other offence in each of two different ways. First, the evidence would or might well be cross-admissible in the sense, to put the matter very briefly, that the jury might properly consider whether the two allegations made independently were so similar that their making was beyond any reasonable coincidence. Secondly, if the jury were sure that the appellant was guilty of one of the offences, then his commission of that offence would or might well be admissible as showing a propensity to commit offences such as the other offence.

On behalf of the appellant, Mr Whitehouse concedes, rightly in our view, that there were sufficient similarities between the two allegations to make the evidence as to them cross-admissible. It is our provisional view, though we have no need to decide the point, that it would have unnecessarily complicated a summing-up to add any further direction in relation to propensity.

Though accepting that the evidence relating to the two allegations was potentially cross-admissible, Mr Whitehouse submits that this should not have influenced the judge's decision to decline to sever the two counts. He submits that in the circumstances of the present case a cross-admissibility direction to the jury would have been so prejudicial to the appellant that a judge in the exercise of his discretion ought not to have given it. The judge should have severed the counts and the judge or judges then trying the two counts separately should each have declined in the exercise of their discretion to admit evidence relating to the offence not being tried in relation to the offence then being tried. In our view, however, the judge was right not to sever the indictment. The two offences were properly joined in the indictment and the evidence relating to them was cross-admissible. In such circumstances an order for severance would be quite exceptional. The approach adopted by the judge was consistent with the observations of Lord Pearson in the case of Ludlow to which we have referred. There were a number of significant similarities between the two allegations. Appropriate cautionary directions to the jury about the way in which they should approach the question of cross-admissibility would remove any unfairness or prejudice to the appellant.

Before leaving this first ground of appeal, we should refer to a feature of the case to which we will return a little later. As will become clear, in the event the judge did not direct the jury that they could use the evidence relating to one offence whilst considering the evidence relating to the other - a decision which, it seems to us, can only have worked to the appellant's advantage. The judge's eventual approach to this case does not, in our view, affect the legitimacy of his decision not to sever the two counts. As Lord Goddard CJ explained in the case of Simms [1946] KB 531 at 536 (another of the authorities referred to by the judge in his ruling):

A further ground of appeal relates to the judge's admission of bad character evidence in the form of his commission of previous offences not charged in the present indictment. The prosecution sought to adduce evidence that in 2002 the appellant had been convicted of rape in order to demonstrate a propensity on his part to commit offences of the kind with which he was now charged.

The brief facts of the rape were that the victim on that occasion, described as a drunken lesbian female, was stopped in the street by two offenders, one being the appellant. She was pulled into a car and driven to a house where she was raped in turn by the two offenders, one being the appellant, whilst a third person held her down.

The application to adduce evidence of this offence was ruled upon at the beginning of the trial at the request of Mr Whitehouse, counsel for the defendant as he then was, who wished to know before the trial started whether the rape conviction was going to be admitted in evidence. The reason he wished to know at that stage was that if the rape conviction was to be admitted he would cross-examine witnesses called by the prosecution in relation to the first offence along the lines that they knew of his previous conviction and jumped wrongly to the conclusion that he must have done what was being alleged by the complainant, as a result of which he was falsely accused. Plainly, if the previous rape conviction was not to be admitted as demonstrating a propensity, then Mr Whitehouse would not cross-examine along those lines.

Mr Whitehouse submitted to the judge that the rape conviction should not be admitted. It was a single offence committed some eight years before the first of the two offences now to be tried. The circumstances of the earlier offence, he submitted, were markedly different. On the earlier occasion the appellant had not been acting alone but as one of three offenders. The victim on the earlier occasion had been a complete stranger. Unlike in the present two alleged offences, the victim on the earlier occasions had been encountered in the street and then taken in a vehicle to a place in which she had been raped not once but twice and with the co-operation of a third party. The only truly common feature, submitted Mr Whitehouse, was that the earlier rape constituted an assault of a sexual nature. Further, he submitted even if the previous conviction would otherwise be admissible, it should be excluded in the judge's discretion because its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. Reliance in this regard was placed on section 101(3) of the Criminal Justice Act 2003. Mr Whitehouse observed that the judge presiding over the earlier trial of the first offence alone had excluded the rape conviction on this latter ground, as indeed he had. However, Judge Ralls ruled that the previous conviction for rape was admissible. He referred to the familiar case of Hanson and others [2005] 2 Cr.App.R 21 and in particular to paragraph 9 of the judgment of the court delivered by Rose LJ, the then Vice President of this court, in which the following was said:

Mr Whitehouse now submits to us that the judge was wrong to reach the conclusion that he did and in essence repeats to us the submissions he made when objecting to the admission of the previous conviction of rape at the original trial.

On behalf of the respondent, Mr Foster submits to us, as he did to the trial judge, that rape can be seen as unusual behaviour of the kind referred to in Hanson and that there were similarities between the earlier rape and the current alleged offences in that each was an opportunistic offence committed at night in relation to a young woman who was vulnerable because she was either drunk or asleep.

In our view, the rape conviction, though technically admissible, should not have been admitted in evidence. Though it bore some similarities in relation to the current offences, they were limited and there were also dissimilarities. We have referred to these characteristics earlier in this judgment and need not repeat them.

Accordingly, the probative value of the earlier rape in establishing a relevant propensity was limited. On the other hand, it is our view that the admission of the evidence must have had a highly prejudicial effect on the fairness of the trial. The circumstances of the offence, involving as it did participation in a multiple rape of a vulnerable stranger picked up on the street, was such in our view as potentially to distract the jury from considering and indeed to blind them to the issues in the case. We have considered the case of P to which the judge referred but the admission of evidence of bad character in any one case involves questions of fact and degree. We are not assisted by the outcome of another case decided by reference to its own particular facts.

Before we leave this ground of appeal, we should add that in saying as we have that the evidence of rape was technically admissible, we are not intending to suggest, as was once suggested during the course of argument, that an offence of rape will ever necessarily amount to unusual behaviour of the kind referred to by Rose LJ in the case of Hanson. Sometimes it may, but it would be wrong to approach any case on the basis that a rape would necessarily attract that description.

We turn to a further ground of appeal. Later in the proceedings the judge granted an application by the prosecution to adduce evidence of a further previous conviction on the appellant's part, this time one of robbery in 1994. It is submitted that the judge was wrong to do so. The brief facts were that at a post office near Southampton three men with a knife and a gun forcibly robbed the premises of money and made off in a car. The appellant was the man with the knife.

The application was granted pursuant to section 101(1)(g) of the Criminal Justice Act 2003 because the appellant had attacked the character of witnesses for the prosecution. He had accused the complainant of the second offence (assault by penetration) and her partner, of making up a false allegation against him to cover up their own wrongdoing in stealing the mobile phone and money to which we have referred. He had also adduced in evidence, with the judge's leave, the bad character of the partner of the complainant to the second offence in that the complainant's partner had been convicted of an offence of theft and had in the past made a false allegation of rape against her step-father.

Mr Whitehouse accepts that section 101(1) (g) was engaged in this case but makes two submissions. The first is that the judge should nevertheless have excluded the evidence because of its potentially prejudicial effect, given the gravity of the earlier offence. The second is that had the judge not wrongfully admitted the previous conviction for rape, Mr Whitehouse would not have attacked the character of the witnesses for the prosecution as he did and would therefore have avoided the risk of the robbery being admitted in evidence.

Our views as to the first submission are that the attack that was in fact made on the character of the two prosecution witnesses concerned was a substantial one, that the jury were entitled to know the character of the man who was making such an attack and that the judge was perfectly entitled, notwithstanding the gravity of the earlier offence, to admit the previous conviction. As to the second submission, the fact is that the appellant had made this attack on the character of the witnesses concerned when he was interviewed by the police and his instructions had plainly not changed by the time of the trial. We cannot see how Mr Whitehouse can have avoided attacking the character of the prosecution witnesses as he did and if he did so there was inevitably a risk that evidence of the robbery conviction would be admitted.

We can see nothing wrong in the judge's approach to that previous conviction and therefore reject the ground of appeal associated with it. We would add however that because the conviction for rape had already been admitted under section 101(1)(d), it was unnecessary for the judge specifically to consider whether to admit that conviction also under section 101(1)(g). Had it been necessary to consider admitting it under the latter provision, it is our firm view that it would have been inappropriate to admit it because of the prejudicial effect to which we have already referred.

A final ground of appeal is that having declined to sever the indictment the judge did not give the jury any or any adequate directions as to how they should approach the two allegations in relation to each other. The bulk of the summing-up was delivered on 24th October 2011 and at no stage on that day did the judge indicate whether the two allegations were to be considered separately or whether the evidence relating to one of them was or might be admissible in relation to the other and, if so, how. It is right to observe however that the judge did sum up the evidence on both sides in relation to each of the allegations entirely separately.

The court reconvened on the morning of 25th October. The judge told the jury that in a moment he would ask them to retire to consider their verdicts. They could take as much time as they needed. It would be sensible to elect someone to act as a foreman or forewoman. He then added the following:

In fact, the judge had not said anything about this to the jury on the previous day and the passage we have just cited contains all that the judge ever said in relation to the approach that the jury should adopt to the fact that there were two counts in the indictment before them. The judge was of course entitled to direct the jury to treat the two allegations separately, even though he might have directed them in relation to cross-admissibility in the way that we have indicated. We have already said that the judge's ultimate approach was almost certainly to the appellant's advantage. However, if that was to be his approach, then in the circumstances of this case, in which the jury were dealing with two allegations with several similar features, it was in our view incumbent upon the judge to direct the jury expressly that the evidence in relation to one was not to be taken into account when considering the other offence and that the decision, if there was to be one, that he was guilty of one of the offences had no bearing on the decision whether or not he was guilty of the other. We do not consider that the jury received the assistance from the judge in this regard to which they were entitled. That said, the judge did, albeit at a very late stage of his summing-up, direct the jury that the two matters were to be considered entirely separately and the summing-up and the criticisms made of it in this regard would not, in our view, have, by themselves, afforded grounds of appeal.

However, we are clearly of the view that the admission of the previous conviction for rape did render these two convictions unsafe and for that reason alone this appeal against conviction is allowed.

MR FOSTER: My Lord, there is an application for a retrial in this case.

THE VICE PRESIDENT: Do you want to say anything, Mr Whitehouse?

MR WHITEHOUSE: My Lord, no. I do not think there is anything I can say.

THE VICE PRESIDENT: I very much doubt it. He must be retried. It is plainly in the public interest that he should be. He must be retried at Southampton Crown Court unless the presiding judges of the Western Circuit direct otherwise. A fresh indictment must be served and he must be arraigned on it within two months of today, unless either this court or the Crown Court directs otherwise. He is in custody, I take it?

MR WHITEHOUSE: My Lord, yes.

THE VICE PRESIDENT: Was he in custody in anticipation of this trial?

MR WHITEHOUSE: My Lord, he was on bail in relation to the first trial on the first count. He was then released on bail and then remanded into custody.

THE VICE PRESIDENT: Because of the second allegation. Do you want to make any submissions as to why that should not remain the case?

MR WHITEHOUSE: My Lord, only this, that some time has passed by. He has been in custody throughout that time. I understand there is an address outside the Southampton area that he can go to.

THE VICE PRESIDENT: No. We think there is much too much risk, Mr Whitehouse. He must remain in custody. If the circumstances change you can of course make an application to the Crown Court.

As there is to be a retrial, the proceedings today must not be reported until the conclusion of the retrial or order otherwise either from this court or the Crown Court.