R v Darren Hill

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.

On 28 July 2022, in the Crown Court at Lewes, the applicant (then aged 51) was convicted of one count of assault by penetration contrary to section 2 of the Sexual Offences Act 2003. On the same day he was sentenced to 6 years and 6 months' imprisonment.

He now applies for an extension of time of 3 months in which to renew his application for an extension of time of 512 days for leave to appeal against conviction following a refusal by the single judge.

The applicant has drafted his own grounds of appeal which will not have been an easy matter for him to do and we have made allowances for that. We propose to give full consideration to the proposed grounds of appeal on their merits and then come to the applications for the extensions of time.

The complainant alleged that she was sexually assaulted whilst asleep by the applicant after she passed out when under the influence of alcohol in his flat. The sexual assault consisted of the applicant putting his finger in her vagina in the early hours of 21 June 2020. The applicant's case was that she was awake and consented to such sexual activity as took place and that she had initiated it. The applicant denied that he had put his finger in her vagina at any stage.

The first ground of appeal is that the judge was wrong to admit the evidence of the applicant's convictions between 2009 and 2011 for exposure. The evidence was admitted on a very specific basis. An important issue in the case was where the initiative for sexual activity was coming from. The applicant said that the complainant took his penis out of his trousers as what the judge described as a "prelude to further sexual contact which then took place". The complainant said that shortly before she passed out through drink the applicant briefly lowered his clothing thereby exposing his penis to the complainant.

Having considered the matter carefully, we are satisfied that the judge was entitled to admit this evidence and for the reasons he gave. An important matter in issue was who initiated the sexual activity and who was telling the truth about it and about the circumstances in which the complainant saw his penis. The jury could properly consider whether it was a coincidence that the complainant had made up her allegation about the applicant exposing his penis at a time when she could not have known that he had a number of convictions for doing exactly that. This was a permissible approach and it was then entirely a matter for the jury to decide what they made of this evidence.

Next, the applicant said that the complainant was wearing a particular dressing gown and very little else. He says that the police were at fault in not seeking to recover it and that his lawyers should have pressed them to do this. The applicant says that the dressing gown would have fitted the description as to style and colour that he was able to give and thus support his account, given that the complainant did not say she was dressed in this way. We are satisfied that this was a matter to be explored at trial. The applicant could, for example, have made this point when he gave his evidence. But in any event, we are not persuaded that it would have been of particular significance in the way for which the applicant contends. As the Respondent's Notice points out, there may have been other opportunities for him to see the style and colour of her dressing gown.

The applicant says that CCTV footage of him and the complainant walking to and from a garage would show that she was not extremely drunk. He says that this line of inquiry was not investigated properly. The Respondent's Notice explains that footage from an ESSO garage was obtained and listed on the schedule of unused material. It was said that: "Neither party appears unsteady". There was also toxicological evidence about the amount of alcohol in the complainant's urine sample taken at 05.55 on 21 June 2020. The jury heard evidence of the telephone call made by the complainant to the NHS 111 line at 04.58 that morning and they had body worn video film of her when the police arrived. We are not persuaded that the absence of any further film could make the applicant's conviction unsafe. The jury had different and sufficient sources of evidence to consider about the complainant's condition including of course from the applicant himself.

The applicant makes a number of other points which we are satisfied were points for the jury to consider at the trial. They are not points for an appeal. For example, the applicant draws attention to the fact that the complainant had said at one point that she was not sure if the applicant had been using his finger or his penis to penetrate her. But the judge drew the jury's attention to this (see summing-up page 14D - E). The applicant says that the complainant stayed in his flat for some time even though she said it was unpleasant to be in. Again, we do not think this takes matters any further. It was not after all in dispute that the complainant had spent time at the applicant's flat on the night in question.

We have considered all the applicant's proposed grounds of appeal and all the correspondence he has sent in. If we have not mentioned a particular point it is because we do not think it adds anything of substance. We are not persuaded that there are any arguable grounds for an appeal. In those circumstances there would be no purpose to be served in granting extensions of time. For these reasons all the applications must be refused.