Gunning, R v

MR JUSTICE SPENCER: This is a renewed application for an extension of time, 179 days, in which to apply for leave to appeal against conviction, and a renewed application for leave to appeal against sentence, both following refusal by the single judge.

This is a case to which the anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply. There must be no reporting of the case which is likely to lead to the identification of the victims of the offences.

On 13th October 2016 in the Crown Court at Lewes, the applicant, who is now 40 years of age, was convicted by the jury of two counts of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. The offences were committed two years apart against two different young women.

On 12th January 2017 he was sentenced by His Honour Judge Anthony to four-and-a-half years' imprisonment on each count consecutive, making a total of nine years' imprisonment. Appropriate ancillary orders were made.

Trial counsel withdrew from the case prior to sentence. Fresh counsel appeared on his behalf at the sentencing hearing and it was she who settled the grounds of appeal against conviction and sentence. Before us today the applicant is represented by fresh counsel again, Mr Stanbury, for whose submissions, written and oral, we are grateful.

In order to understand the grounds of appeal it is necessary very briefly to summarise the facts. The prosecution case was that on two occasions the applicant had taken advantage of young women who were the worse for drink or drugs or asleep, and had inserted his finger into their vagina. The first incident took place in 2011. The complainant, HW was 24 years old. She met the applicant at a party and he returned with her and some of her friends to her flat where they carried on drinking and socialising and taking cocaine. The applicant ended up sleeping on a mattress on the floor in HW's bedroom. She was sleeping in the bed. However she woke up during the night to find that the applicant was in bed with her. He had pulled her tights and underwear down and was penetrating her vagina with his finger. She got up immediately, left the house and called her boyfriend. She reported the matter to the police two days later. Her boyfriend sent angry texts to the applicant. However she did not pursue the matter at that stage. She felt ashamed that she had let the applicant sleep on her floor. A few months later she had bumped into the applicant in a bar when she was with a friend and there was another occasion as well when in company with others she had seen him. On this occasion in the bar she confronted him angrily, she said, and he had laughed.

The second incident was nearly two years after the first, in September 2013. This time the complainant was a young woman aged 17, RH. The applicant was out with friends drinking and taking cocaine. They met RH at a bus stop and she returned with the applicant and his group to the hostel where he was staying. She was highly intoxicated. She ended up with the applicant under a blanket on the sofa. A cleaner at the hostel was so concerned on seeing this that the police were called and paramedics attended because of her condition. The applicant was shouting: "I didn't do anything" and when the police arrived he said, unprompted: "I am the culprit." In view of the fact that RH was clearly not in a state to consent to anything, and in view of the fact that it seems her underwear was in some state of disarray, the appellant was arrested on suspicion of rape.

In interview, on 20th September 2013, he described how he had met RH that evening. She was half awake and half asleep, he said, as they moved from one sofa to another, back at the hostel. They were being “touchy and flirty” under the blanket. She had moved his hands towards her vagina and held his hand there. It was then that he put a finger inside her vagina for a short time. She was responding to it, he claimed in interview, and he thought she was consenting. She was not unconscious. Then the cleaner pulled the blanket off them and was shouting at him.

It was not until some 10 months after that interview in July 2014 that the applicant was interviewed by the police in relation to the first incident, count 1, the allegation involving HW. He said in that interview that it was HW who had suggested going back to her flat. His own girlfriend had been there as well but she had gone to sleep. HW was showing some sexual interest in him. She was flirting with him, although he was not flirting back. He was not interested. She had suggested that he sleep at her flat. She was rubbing her bottom against him. They were in a spoon position. Then she took his hand and rubbed it on her vagina over her clothing. That only lasted for a few seconds and then they both went to sleep. He woke up to find her off the bed, saying to him, "You know what you've done?" She had said he could stay. She would go and sleep in her boyfriend's bed next door. In this interview, it is important to note, the applicant said in terms that no penetration was involved. Then he spoke about an occasion when he had been approached by two of her friends in a bar with HW there, both very drunk. They were kicking and scratching at him.

Pausing there, in respect of both incidents, therefore, the applicant told the police in interview that there had been sexual activity with the complainant's consent. In the first case he had touched her on the vagina but only over her clothing. In the second case he had put a finger inside her vagina.

The two separate allegations initially progressed to court as two separate cases but eventually they were joined in a single indictment. In the defence statement which was served in relation to the first offence, which was dated 11th April 2016, it was asserted that he had never touched HW in a sexual manner at all (count 1). He said at paragraph 9 that there had been some flirting between them earlier in the evening, but he did not try to touch her at any stage that evening, including in the bedroom. He said he did not recall putting his hand on her, as he had suggested in his police interview. He thought he was mixing up his memory of that night with the incident involving the second complainant. He was tired and drained straight after work and the case concerning the second incident was weighing heavily on his mind -- that was at paragraph 19 in the defence statement. He also referred in his defence statement to three specific occasions on which he had met HW and had conversations with her, one of them when he and she were alone, paragraph 16.

The prosecution relied upon cross-admissibility of the independent allegations made by these two complainants, suggesting that the striking similarity of each was beyond coincidence. Neither complainant knew the other. The first complaint had been made long before the second incident had even taken place.

The applicant gave evidence that he had confused the two incidents in his police interview. He said that he had met HW in the street a month or two after that incident. She had said hello and asked him how things were. He did not want to speak to her so he left. That incident had not been put to HW in cross-examination, for reasons which we shall come to.

The judge did not provide the jury with written directions of law, but there is no criticism of his directions save in one respect. In relation to cross-admissibility he directed the jury that they could approach the matter in one or both of two ways. First, they could consider the question of coincidence. If they were sure they could exclude the possibility of one complaint being influenced by the other, consciously or unconsciously, they might conclude that the similarities between the allegations could not be explained away as coincidence. But there was another way as well in which the evidence supporting one count could support the prosecution case on the other. If the jury were sure that he was guilty on one or other count, that could be treated as evidence of a propensity or tendency to commit sexual offences of this type on sleeping or unconscious women. If they were sure he was guilty of one count, that might help resolve the truth of the complaint on the other count.

The grounds of appeal against conviction are essentially that through the way in which trial counsel conducted the case, and the judge dealt with matters, the jury were never made aware of some relevant content of the defence statement which would have demonstrated that the change in the applicant's account in relation to the first incident involving HW was not recent fabrication as the jury might otherwise have assumed. True, he had changed his account from what he had said in that interview. He had suggested to the police that there was intimate touching. But in fact he was confused and there had been no such sexual contact at all. He had corrected that in his defence statement and explained that he had mixed up the two incidents. The jury were never told that he had said this in his defence statement. Similarly, the jury were allowed to think that when he gave evidence of the conversation in the street with HW some months later, that was the first time he had ever mentioned it, whereas in fact it was in his defence statement. It is submitted that these were important matters which went to his credibility in the eyes of the jury.

Following waiver of privilege, trial counsel provided an explanation of these omissions. She says that it was never suggested by the prosecution that the explanation of mixing up the incidents in the interview was recent fabrication. The prosecution's point was more fundamental. How could it be that he mixed up the two episodes when his case was that he had inserted his finger into the complainant's vagina in count 2, but had never suggested such a thing in relation to count 1 when interviewed about that matter? She also points out that had the defence statement been admitted there were other factual inconsistencies between his evidence and some details in the defence statement which would not have assisted him. For example, in his defence statement he had asserted that there had been some flirting between himself and HW, whereas in evidence he denied that. He also suggested in his defence statement that HW had been smirking when she spoke to him that morning after the alleged sexual assault, which he was no longer suggesting in his own evidence.

As to the meeting with HW in the street some months later, when the two of them were alone, trial counsel says that the appicant’s explicit instructions to her were that he had seen her only on the two occasions which he had spoken about in interview. It is clear that in the record of the defendant's interview, at the end, the police officers went to some lengths to establish that apart from two incidents of meeting her in company with others, in the months which followed the incident, the applicant had not had any further contact with her and he confirmed that. In other words, there was a further conflict between what he said in his interview and what he had said in his defence statement. Despite that, he went on to give evidence about the third meeting. The judge however in the absence of the jury had checked with trial counsel after the applicant's evidence that this was not an oversight on counsel's part in not putting that allegation to the complainant when she was cross-examined. Counsel confirmed that it was not an oversight. It is submitted that the judge commented on this omission when reminding the jury of the applicant's evidence on this point, inviting the conclusion in effect that this meeting was something he had not previously mentioned even to his own counsel, whereas in fact it was in the defence statement.

The second ground of appeal relates to the direction on cross-admissibility. It is submitted that the judge was wrong to leave the jury both limbs of the direction, coincidence and propensity. Reliance is placed on the guidance from the Judicial College in the Crown Court Compendium to the effect that it would only be in rare cases that a jury could properly be directed that the evidence could be used both to rebut coincidence and to support propensity. Reference in those notes in the Compendium is made to the leading case of R v M(H) [2011] EWCA Crim. 730. It is suggested in the guidance that a direction should be given, if at all, only in cases where the evidence on one or more counts is significantly stronger than that on the other count which the jury may be considering, and that the jury should then have the opportunity to convict on the stronger count establishing propensity before considering the other count. In that event and to avoid the risk of impermissible double-counting, the propensity approach should be explained in the direction first, then the coincidence approach. Here, contrary to that advice, the judge dealt with coincidence first.

In his oral submissions before us this morning, Mr Stanbury submits that there remains a conflict of fact between the applicant and his former counsel as to the instructions which he gave in relation to this question of the third meeting in the street with the complainant in the first incident, and that conflict can only be resolved by the calling of evidence before the full court at a full hearing of the appeal. Trial counsel has provided her notes from conferences, and an annotated copy (as we have explained) of some of the prosecution papers. Mr Stanbury submits that there is nothing in those documents to support her assertion following waiver of privilege that a decision not to put to HW in cross-examination this third meeting in the street was a decision taken specifically in the light of the oral instructions he gave her.

We shall deal first with that point and the points arising from the defence statement more generally. On any view there was a fundamental change in the applicant's account of the incident giving rise to the first charge. In the police interview he had admitted sexual contact but suggested it was with her consent and only over her clothes with no digital penetration of her vagina. His case before the jury was that he had mixed up the two occasions when he was interviewed in July 2014. The jury had to assess that change. We agree with the single judge that it is difficult to see how the fact that he made and acknowledged that change of account in his defence statement would have made the position any better. As trial counsel points out, had the jury been provided with his defence statement there would have been other discrepancies exposed which might not have been helpful. Furthermore, there is no indication in the summing-up that this change of account was treated as a recent fabrication. Prosecuting counsel would not have been entitled to make such a suggestion in view of the content of the defence case statement. The judge never suggested it. The real difficulty with the applicant's explanation, as trial counsel has pointed out, was that a mix up between the two incidents could not explain the change of account satisfactorily when he had admitted in the clearest terms that in relation to count 2 he had put his finger into the complainant's vagina, whereas in relation to count 1 he had never asserted such a thing.

As to the issue of the meeting with HW not being put in cross-examination, it is correct that the judge did refer to this in the summing-up. At page 31 he said:

The position as explained to the jury by the judge in a sense reflected the true position in that counsel's instructions on her version of events had changed from the content of the defence statement. However, it would have been unwise in the extreme to seek to introduce the defence statement. In any event it seems to us that by the observations made by the judge at the end of the passage which we have quoted, the judge diluted the force of any adverse inference. We do not think that even arguably these points can conceivably cast doubt on the safety of the convictions.

Turning to the direction on cross-admissibility, we have not quoted the full direction which the judge gave, nor is it necessary to do so. There is no criticism of the content of the individual directions in each limb, coincidence and propensity. The complaint is that both limbs were but should not have been given. We note from R v M(H), already cited, that this court did not there positively forbid the giving of both limbs in an appropriate case. Plainly each case must turn on its own facts. At paragraph 31 of the judgment in that case the court simply said that it would be only in rare circumstances, if at all, that the jury might be invited to consider both the possibilities in the same case, coincidence as well as propensity.

As we have pointed out, the Compendium suggests that it may be appropriate for both limbs to be left where one count was much stronger than the other. We think, looking at it at a distance, that was effectively the position in the present case. In relation to count 2 the applicant admitted digital penetration. The sole issue was whether the complainant consented to it and, if she did not, whether the applicant reasonably believed that she consented. The prosecution case was that she was asleep at the material time or so affected by drink or drugs as to be incapable of giving informed consent to anything. The overwhelming evidence from other witnesses was that she was indeed in such a state, either asleep or insensible. If the jury were sure that evidence was correct then the applicant really had no defence on count 2. By contrast, on count 1 the prosecution case depended entirely upon the jury's assessment of the credibility of the complainant HW in asserting that she had woken up to find him penetrating her vagina with his finger. There was a stark conflict of evidence. To that extent count 2 was considerably stronger, we think, than count 1. That said, the force of the coincidence limb was still very strong because HW had reported the matter to the police soon afterwards when on the applicant's case there was nothing to report and no reason for her to make up any false allegation. By contrast, he had on any view given inconsistent accounts of what happened on that occasion.

Mr Stanbury has made a further submission that the trial took a wrong turn from the very start when the jury were not informed at the outset that the defence on count 1 was that nothing sexual had happened at all, contrary to his explanation in interview which had been corrected in his defence statement. It is suggested that the judge should have directed at the start of the trial that the jurors be provided with a copy of the defence statement in accordance with CPR 25.9 or at least should have been informed what the defence was. We think it unlikely that the jury would not have realised soon after the start of the trial precisely what the limitations of the issues were in this case, certainly as soon as the complainants were cross-examined. We do not think there is any separate ground of appeal arising properly from that submission by Mr Stanbury.

We should also add that we have read and considered the extensive written observations by the applicant himself in correspondence with the Registrar. There is nothing in those documents which takes the matter any further, nor has Mr Stanbury taken us to any separate or other part of the applicant's representations.

On careful analysis we are very far from persuaded that it is even arguable that the judge was wrong to give both limbs of the cross-admissibility direction on the particular facts of this case, nor do we think that in this case at least it mattered which limb was given first. Having read and reread the direction the judge gave, we are satisfied that it was clear and the jury cannot have been led into error.

The reality is that this was a very strong case. We are not persuaded that there is any arguable ground that the convictions are unsafe. Accordingly we would refuse the renewed application for leave to appeal against conviction. In those circumstances we refuse to extend time.

We turn to sentence. The judge was satisfied that both offences fell within Category 2B of the relevant Sentencing Council guideline and that each victim was particularly vulnerable due to personal circumstances, namely that she was asleep and/or affected by alcohol and/or drugs. The starting point for Category 2B is six years with a range of four to nine years.

In his oral submissions this morning, Mr Stanbury accepts that the judge was correct to place each offence in Category 2B. There were no other specific aggravating factors. There was no mitigating factor save that the applicant had no previous convictions. His previous good character was of little relevance, as the guideline makes clear.

The judge said that consecutive sentences were appropriate as these were two separate offences committed against two different women two years apart. However, in order to reflect the principle of totality he reduced the sentence on each count to four-and-a-half years' imprisonment, those sentences to run consecutively.

Mr Stanbury submits that even though these offences were both Category 2B they fell at the lower end of the bracket and there should have been a greater reduction for totality, particularly in view of his lack of previous convictions and his age.

We are wholly unpersuaded by that submission. The judge presided over this trial. He was fully entitled to conclude that the applicant was a dangerous offender, although he did not think it necessary to impose an extended sentence on that account. It was however a serious case of its kind. The judge made ample allowance for totality in reducing the starting point for each offence from six years in the guideline to four-and-a-half years. The determinate sentence of nine years was neither wrong in principle nor manifestly excessive. This application for leave to appeal against sentence must also therefore be refused.