AS v R.

This is an appeal against conviction brought with the leave of the single judge.

On 10 May, 2013, AS was convicted of two counts of the rape of his wife, KS on a date between 15 December 2005 and 24 January 2012.

On the same occasion he was acquitted by the jury of four other counts of the rape and one count of assault by penetration of his wife and, on the direction of the trial judge, of a sole count of common assault.

There are two grounds of appeal. The first, that the trial judge should have acceded to a submission of no case to answer at the conclusion of the Prosecution case. The second, that the verdicts are illogically inconsistent and are, in the circumstances, unsafe.

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. No matter relating to the complainant shall, during her life time be included in any publication if it is likely to lead members of the public to identify her as the person against whom the offence is alleged to have been committed.

The background is as follows: The Complainant travelled from India in December 2005, ostensibly as a carer for the Appellant’s mother. There is every likelihood that she was earmarked as a future wife for the Appellant, 16 years her senior, in the event that his then wife was unable, despite undergoing IVF, to bear him children. She alleged that on the day of her arrival in the UK, she was indecently assaulted by the Appellant as he drove the car used to collect her and his mother from the airport and subsequently raped by him that same day when at his sister’s home address (Manor Road for identification purposes) whilst his mother and young nephew were in the house.

Thereafter, she said, both prior to their subsequent marriage in February/ March 2007 and afterwards, he would repeatedly insist on having sexual intercourse with her despite knowing that she did not consent to the same and had either verbally and physically indicated her unwillingness or else had, to his knowledge, submitted to his will. Specifically, on an occasion before marriage and on the eve of a family outing to Alton Towers in June/July 2006, he had taken her to an unoccupied house belonging to one of his friends (in Tudor Road for identification purposes) and had there stripped her forcibly, slapped her face and twisted her arm while he was having sex, threatened to tie her up, struck her with a metal rod on her legs and then had sex with her again. The next day her arm had been swollen, she was cradling it and was asked by a relative the reason why. Also, on a date in January, 2012, when she, the Appellant and the two children of the family were sleeping in the same bedroom, the Appellant had insisted on having sexual intercourse despite her fears of disturbing the children. On his first approach she had submitted to his advances , but he had returned after viewing pornographic material and had digitally penetrated her despite her resistance and shortly afterwards had sexual intercourse with her despite her verbal refusal, her lack of physical response and the fact she was half asleep. This incident was said to have happened at the end of her relationship with the Appellant. Shortly afterwards, she left.

The specific allegations attributed to the date of the complainant’s arrival in the UK, the day before the family outing to Alton Towers and the incident in January 2012 founded the allegations in Counts 1, 2, 5, 6 and 7 of the indictment. That is, we are satisfied that the trial judge directed the jury in terms, that despite the complainant’s allegations that she was raped on other visits to the unoccupied house in Tudor Road, they were to have regard to the specific allegation referred to above when considering their verdict in relation to Count 2 on the indictment .

Counts 3 and 4 on the Indictment were sample counts relating to the period between the complainant’s arrival in 2005 and the appellant’s arrest after the events alleged by the complainant to have occurred in January 2012. They were not further particularised for the jury by way of time or location and could, the trial judge directed the jury, relate to the allegations of the complainant in relation to Manor Road, Tudor Road or presumably, elsewhere. He directed them unequivocally that in order to convict on count 3 the jury would have to be sure that on at least one occasion other than those referred to in Counts 1, 2, 5, and 7 the Appellant raped the complainant, and in order to convict on count 4, that they should be sure that on at least one further occasion he had done so, other than on those referred to in Counts 1, 2, 5, and 7.

The Appellant’s case was to deny the act of sexual intercourse as alleged in Counts 1, 5 and 7. He accepted that he had had consensual sexual intercourse once at Manor Road and on a number of occasions with the complainant at Tudor Road but denied any occasion of violence as alleged or at all. Otherwise, he maintained that sexual intercourse was at all times consensual and often instigated by the complainant.

The jury acquitted the Appellant of all specific counts. This forms the basis of the second ground of appeal. Miss Lucking QC, on behalf of the Appellant draws upon her arguments in relation to the first ground of appeal to support her arguments concerning the second as we indicate below.

Miss Lucking’s submission to the trial judge was “in very simple terms, that so far as the evidence of the complainant is concerned in this case, it is so fundamentally contradictory and out of common sense” as to trigger “the second limb of Galbraith”. That is, she contended that the judge should conclude that “the Prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it”. She referred the judge to 37 discrepancies in the complainant’s evidence, as admitted to be so by the prosecution in the court below, which went to “significant issues of fact”. Recognising the obstacles created by the ratio in R v Galbraith 73 Cr.App.R 124, she posed the explicit question to him: “How bad does a case have to be evidentially in order to satisfy the second limb of Galbraith?”.

Mr Lody, on behalf of the prosecution reminded the judge that the allegations of rape and other sexual assault were maintained, and argued that the evaluation of the inconsistencies as they stood amounted to attacks upon credibility and reliability which were matters for the jury.

Both Miss Lucking and Mr Lody have maintained their respective positions and advanced the like arguments before us today.

The judge in his ruling reminded himself of the judgment in Galbraith and the more recent Goddard & Fallick v R [2012] EWCA Crim 1756 he concluded that “the half time judge asks himself or herself what the effect is, firstly of a proper direction. And in this case, a proper direction…relates to and directs the jury to their proper approach to inconsistencies in a witness’s evidence ...Secondly, Goddard is emphasising that the question is not whether all reasonable juries would be capable (properly directed) of convicting, but whether a reasonable jury would be, and again emphasising, as Galbraith does, putting the Prosecution case at its highest.” He went on to say, “ In my judgment, the application has to fail for this reason: recognising the substantial number of inconsistencies and/or fresh matters (many of them of real significance) raised by the complainant in the course of her evidence, those criticisms , properly made, are criticisms that have to do with her reliability and credibility. That, at the end of the day, is a jury matter.”

Miss Lucking was unable to demonstrate to us that the trial judge mischaracterised these ‘inconsistencies and/or fresh matters’ as issues going to the credibility and reliability of a witness. Patently, we consider they were capable of this classification. We recognise, as did the trial judge that the overall effect of the complainant’s additional assertions or clarification of previously recorded evidence was capable of diluting her evidence, but the judge did not consider that he was entitled to adjudicate that they necessarily did so.

He obviously had in mind, as he self directed himself he must at “half time”, the general terms of the direction he would give to the jury in this regard. Thus we find in his summing up, having referred the jury to the list of agreed occasions on which the complainant gave a “different version then and now” and had “not said before”, his direction to the jury as to the impact of those inconsistencies. He directed the jury that “When you consider the totality of her evidence, as it has unfolded, I direct you that the experience of the courts is that it is unwise to approach the issue of inconsistency with an assumption, a preconception, that a true account is always consistent or that an inconsistent account is always untrue: it depends on the circumstances and the individual….Each inconsistency…must be examined by you to decide whether it’s significant concerning the truthfulness of her account as a whole. If you are sure, nonetheless, that the essential parts of her account are true on the count you are considering, you will apply that conclusion in your verdict on that account…If you are left in doubt about the truthfulness and reliability of her account, whether overall or on one or more counts because the inconsistencies can’t be satisfactorily explained, you must find the defendant not guilty of that or those counts.” We consider this direction to be unimpeachable in this regard but revisit it later. Miss Lucking expressly indicates that she makes no complaint about the substance of the summing up, whether as to directions in law or the summary of fact. In these circumstances this first ground of appeal cannot withstand critical scrutiny.

The second ground of appeal has proved more troublesome. Mr Lody concedes that there is an inconsistency in the verdicts but attempts to justify the differences in outcome. However, we find that his suggested line of reasoning to account for the unusual combination of verdicts to be implausible and not in accordance with the complainant’s evidence as, we are told by both he and Miss Lucking, was correctly summarised to the jury.

Miss Lucking is obliged to concede, and has done so, that there is some evidence, which is capable of substantiating the allegations of rape which are otherwise not particularised in Counts 3 and 4 and are generalised assertions that sexual intercourse happened on other occasions in the appellant’s sister’s house and in Tudor Road and other occasions during the marriage which she did not consent to, and at times when she made clear her unwillingness by saying no or else demonstrated by her response, or lack of it, a resignation to the same by way of submission. However, she argues that for whatever reason the jury had doubts regarding the complainant’s allegations as to actus reus, lack of consent or the appellant’s knowledge or reasonable assumption of the same on the specific occasions referred to in Counts 1, 2, 5 and 7, that same jury reasonably could not have reached guilty verdicts in relation to Counts 3 and 4. The only plausible explanation for them doing so, she argues, is that the appellant could not address them specifically which may predicate a wrong approach to the burden of proof or an assumption that something must have happened.

The possibility that the jury may acquit the defendant on counts 1, 2, 5, 6, 7 but still convict on counts 3 and 4 never occurred to her at trial. If it had she would have advanced a submission that the judge should have directed the jury that as an exception to the general rule if they were unsure on the specific counts preceding the occasions on counts 3 and 4 they should also acquit on these counts.

Acknowledging, as we do the fact that there is evidence – in however a nebulous form – that , if accepted by the jury could legitimately base the conviction , we have pondered whether these inconsistent verdicts are therefore inexplicable/ illogical and unsafe in the light of the judge’s directions of law, which prior to this hearing Miss Lucking did not criticise. Ultimately we have come to the conclusion that they are unsafe.

R v Dhillon [2011] 2 Cr App R 10 conveniently identifies the principles to be deduced from the long line of authorities in respect of alleged inconsistent verdicts. They are uncontroversial and do not require re-airing here, save to iterate that “each case turns on its own facts and no universal test can be formulated”.

In this sense, although we are struck by the similar factual background between this case and that of R v Michael Stephen J [2010] EWCA Crim 1768 and Miss Lucking obviously prays it in aid we ignore its outcome for the purpose of our own analysis of the particular facts in this case.

The stark reality is that the evidence of the complainant in relation to the elements of rape and sexual assault contained in the specific counts was plain and unshaken. Namely, regarding Count 1, there had been sexual intercourse; she did not consent and actively demonstrated this. In respect of Count 2 she had been violently assaulted before, during and after sexual intercourse demonstrating her lack of consent and the Appellant’s understanding of the same. In so far as Counts 5, 6 and 7 were concerned her will had been suborned and she indicated her passive resignation and submission to all that had occurred. It is far less clear in relation to the other occasions when sexual intercourse occurred. There were said to be several other times in Manor Road when she had said no, made a sound or moved away. There were other occasions in Tudor Road when she was aware that she was isolated and unable to resist. There were other times when she was taken out to a car park near Market Harborough and was placed in a similar position.

We are very alert to the potential impact of the complainant’s evidence in relation to Counts 5, 6 and 7. Reluctant consent and submission to sexual intercourse may often be difficult to delineate. If these were the only verdicts of Not Guilty the outcome of this appeal may have been very different. However, even then the problem posed by the facts of this case mean that the guilty verdicts of the jury are impenetrable in terms of the period of time concerned, the location of the alleged assaults and consequently whether this was an occasion of the complainant’s withheld consent or submission. Miss Lucking accepts that she should have sought further particulars. However, Mr Lody’s concession that it was impossible for the judge to give a “Brown” direction, that is to require unanimity (subject to a majority direction) upon the ingredients of rape in relation to incidents which the Prosecution incorporated within the sample counts they being without even the most basic particulars, for example “in Manor Road when she demonstrated her lack of consent by moving away”, or “in Tudor Road when isolated from assistance she submitted to his advances although the Defendant knew she did not consent”, demonstrates the danger that arises. The danger is all the more acute where, as here, the complainant does not allege that all sexual intimacy throughout this period was enforced or unwanted.

As it is, this Court has clear indication that the jury were not sure, on the basis of some part of the complainant’s evidence, of either of the scenarios posed at the outset or conclusion of the relationship. In these circumstances Mr Lody’s reference to the effects of a relationship of attrition upon which he depended so heavily at trial and which he says this Court may comfortably assume was the basis of the jury’s guilty verdicts because “they may well have thought that something like this was bound to have happened” strikes a discordant note in several respects and heightens our anxieties.

There was no objection taken to the usual direction that the jury should consider each count separately, and nor could there be, but this was a case where, standing back from the fray, we conclude that there should have been an explicit warning to the jury of the impact of its not guilty verdicts on specific counts vis a vis the sample counts. That is, we cannot see that a reasonable jury could, on the paucity of the stand alone evidence concerning the add on sample counts, be sure of guilt in relation to them if they rejected the specific events. This factor in itself would render the verdicts unsafe quite apart from inconsistency.

However, we go further and incorporate the approach of Toulson LJ (as he then was) in R v Cross [2009] EWCA Crim 1553 (as did the Court in Dhillon) to the effect that verdicts are inconsistent where “they cannot plausibly be explained by any line of reasoning which the jury could have adopted looking at the evidence as fair minded ordinary people. The appellate court has to apply this test in the context of the issues which were presented to the jury, but that does not of course mean that a jury have to view the evidence bearing on those issues in the way that was argued for either by the prosecution or defence.”

In the circumstances of this case, whilst the numerous inconsistencies in the complainant’s evidence as identified and agreed at the conclusion of the prosecution case cannot usurp the jury’s assessment of credibility and reliability in accordance with the direction of the judge, once they did so in relation to counts 1, 2, 5, 6 and 7 they were bound to do so in relation to Counts 3 and 4. We conclude that fair minded and ordinary people could not have ignored the impact of the obvious doubt they felt as regards the integrity and credence of the allegations in relation to specific counts when considering the available and, as Mr Lody realistically concedes, scant evidence in relation to the sample counts which were said to have occurred at some stage during a six year period. That the judge did not so direct them in his otherwise careful and conscientious summing up underpins our conclusion that these convictions are unsafe.

The appeal is upheld. The convictions are quashed. Any ancillary orders flowing from the convictions are set aside.

We invited arguments as to whether we should order a retrial entirely without prejudice to our reserved decision. Having heard from Mr Lody and Miss Lucking we are satisfied that the Appellant could not be guaranteed a fair trial in the circumstances. It will be impossible for any case to be put without reference to those allegations previously found to be unproved. The prejudice that will inevitably flow is incapable of amelioration. We reject any such application that would otherwise be made.