[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> D'ambrosia, R. v [2015] EWCA Crim 182 (05 February 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/182.html Cite as: [2015] EWCA Crim 182

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		5th February 2015

LORD JUSTICE TREACY:

1. This appellant appeared before the Crown Court at Blackfriars. He was convicted on count 1 (rape) and count 3 (assault by beating). He was sentenced on 24th January 2013 to an extended sentence of 11 years, comprising a custodial term of eight years and an extended period of licence of three years. That sentence was imposed on count 1. No separate penalty was imposed on count 3. Count 3 represented an alternative count to an allegation of sexual assault in count 2.
2. The full court granted leave to appeal against conviction. The sole ground upon which leave was granted relates to issues concerning the disclosure of bad character evidence. It is right to say that when the full court granted leave, it did not have the benefit of all the transcripts which have been provided to us for the hearing of the full appeal.
3. We reiterate that the provisions of the Sexual Offences (Amendment) Act 1992 apply to this case.
4. In brief, the facts show that the appellant and complainant entered into a relationship in May 2012. The rape count relates to sexual activity which took place in the early hours of 17th July 2012. The Crown's case was that the complainant did not consent to any sexual activity with the appellant on this date. The defence case was that regular intercourse had taken place in the course of the relationship and that on this occasion rough, but consensual, intercourse took place, it being the complainant's preference for intercourse of that type, with which the appellant complied. The issues for the jury were consent and whether the appellant had a reasonable belief in consent.
5. Counts 2 and 3 related to a separate incident which took place about a week after the events in count 1. The parties agreed that a relationship had developed in May 2012 and that it had involved sexual intercourse. The frequency and the nature of that were in dispute. According to the complainant, intercourse took place on only a few occasions; according to the appellant, it was much more frequent and the complainant had a preference for what may be described as rough sex.
6. There was also a divergence of evidence about the events surrounding the rape, the complainant saying that she had been followed home by the appellant after she had left a meal with him at the home of a mutual friend and had made clear that she did not want to be with him. She described being forced to let him into her premises and being subjected to a lengthy and violent rape or series of rapes involving a knife and a bat. Her account was potentially supported by a complaint she made to a neighbour the following day and also by some relatively minor injuries found on medical examination.
7. The appellant gave evidence. He painted a picture of rough consensual intercourse enjoyed by the complainant.
8. During the evidence the appellant's replies in interview were read to the jury. The transcript had been edited, but a passage was mistakenly left in and adduced in evidence. In that passage the officer put to the appellant that he had been accused of being violent towards women in the past. The appellant replied, "Have I?". The officer replied, "Yeah". At that point the solicitor intervened in the interview and advised the appellant not to answer questions, saying that they were out of order. This episode led to a discussion at the close of the Crown's case about how this error should be handled.
9. In addition, defence counsel raised the issue of evidence given by the complainant making allegations of other violent conduct by the appellant against her. It appears that during the course of her evidence the complainant had mentioned a number of incidents prior to the alleged rape in which she claimed that the appellant had been violent towards her.
10. It seems that there had been some discussion between counsel at the outset of the case, because at that stage the Crown was in a position to make a bad character application. Instead of pursuing that option, however, both counsel agreed that the jury should be told that there had been a turbulent relationship between the parties and that the complainant had previously made complaints to the police about the appellant which had not been pursued. In particular, it was agreed that reference could be made to a previous complaint by the complainant about a month before the alleged rape which, on the day before the rape, the police had indicated they did not intend to pursue. The Crown relied on this in suggesting to the appellant that he thought he could have intercourse without the consent of the complainant on the occasion in question. The defence used it to show her unreliability. It is clear, however, from the summing-up that in addition to those matters, the complainant mentioned other incidents in her evidence. It seems that she was not an easy witness to control. It does not appear that at the time any specific objection was taken by defence counsel to what had happened.
11. The complainant was cross-examined on the basis that she was a fantasist, and reliance was placed by the defence on the specific complaint referred to above which the police did not pursue. No doubt, defence counsel perceived forensic advantage in this.
12. However, when the error in relation to the police interviews took place, counsel not only raised that matter, but was properly concerned to seek a ruling about what the complainant had said about other incidents. The error arose on a Friday afternoon. The judge adjourned until Monday morning so as to give counsel time to reflect and to take instructions. On the Monday morning there was a discussion. We have seen the transcript. Defence counsel did not seek a re-trial, no doubt on instructions and for good tactical reasons, but instead sought a firm direction from the judge. The judge said he would give a direction to the jury to ignore the passage in the interview completely. As to what the complainant had said, the judge said he would deal with it, but did not specifically say what he would tell the jury. There may have been some misapprehension on the part of defence counsel, but, in any event, he said he could not improve on what the judge had said. In the discussion the judge had indicated that he did not consider that what the complainant had said lacked relevance.
13. After that, the appellant gave evidence. He referred to arguments and difficulties in the relationship. He gave evidence suggesting that the complainant had assaulted a mutual friend and that she was a dominatrix, whereas he was a mild, humble person. He suggested that she was capable of making a false complaint and illustrated that by reference to the specific allegation about which the police had taken no action.
14. At the conclusion of the evidence there was a brief discussion about legal matters. It included the character issue. The judge reiterated his intentions in relation to the interview evidence and said that he would also give directions to the jury about the approach to other allegations made by both of the principal parties. When the judge came to sum up, he said the following:

"I want to give you a direction or some guidance now about other allegations which have permeated the atmosphere in this case. In most cases, ladies and gentleman, a jury like yourselves is introduced only to the allegations represented by the counts in the indictment and to nothing more. In this case, however, as you will readily appreciate, you have heard rather more than the facts of the counts. You have heard about those allegations, ladies and gentleman, with the agreement of both sides.

That was because, ladies and gentleman, there was no way for you to understand this rather unusual case. It would have been impossible for you to understand the context in which the current allegations are made. You had to understand the background in order to assess, in fact, the merit of these particular allegations. That is the reason, ladies and gentleman, and the only reason why you have heard of those other allegations made by Joy against this man and this man against Joy.

It is the background the background only. Remember at all times that your principle [sic] task is to evaluate the evidence relevant to the three charges on the indictment. That is not to say that the background is not relevant. It is relevant. It may well be, ladies and gentleman, that you will have to decide one or two features of the background in order, in fact, to do your job properly, but remember one thing with the background; your primary concern is with the counts on the indictment.

Now, let me just refer to another matter. When the defendant was being interviewed, ladies and gentleman, and that interview was being read to you by counsel with the officer, reference was made, unhappily, to other allegations being made by others against this defendant. It would have been better if that had never been put before you, but it was, I suspect, by accident. So let me give you an important direction about it.

In simple fairness to the defendant, you will kindly ignore that particular reference in the interview. We do not know what those other allegations involved, who they concerned, how serious they are or, indeed, how flippant they are. They are undoubtedly unproven allegations and may be allegations which are so petty they should not be given the light of day. That is not the currency with which we deal in these courts, ladies and gentleman, and particularly in this criminal trial. The currency is evidence, not powered allegation. Your focus on the evidence in this case must be relevant to the charges and to nothing more."

15. The grounds of appeal urge that that direction did not adequately deal with the question of character. In the written grounds it was submitted that the judge was wrong to state that the evidence of character was admitted by agreement. Whilst there had been some agreement as to the turbulent background and a complaint over which the police had indicated they would take no action, there had not been agreement to admission of other complaints. Secondly, it is said that the summing-up wrongly left the impression that the jury could consider the matters mentioned by the complainant as relevant to the background of the case. If the evidence was admissible, the jury should have been told that since the evidence was disputed they should only rely on it if they were sure it was true. Thirdly, it is said that the appellant did not have an opportunity to deal with the complainant's additional allegations when he gave evidence, although it was acknowledged that he dealt with an occasion described by the complainant when she had awoken to find the appellant having or about to have intercourse with her. Finally, it was submitted that when these matters are taken together with the inadvertent admission of the question put to the appellant in interview, the verdict on count 1 is unsafe.
16. In the course of her oral submissions this morning, Ms O'Connor has particularly focused on the cumulative effect of what occurred and has submitted that notwithstanding the directions given by the judge, they would have been insufficient to displace the prejudice which would have arisen in the minds of a lay jury.
17. It has not been argued that the jury should have been discharged when those various matters went into evidence, and that did not form the basis of any ground of appeal. We think that that was a correct approach and that what occurred was the sort of situation which the trial process is well capable of dealing with. What was needed, however, was appropriate direction to be given to the jury in the course of the judge's summing-up. This is particularly so bearing in mind that this case was essentially a contest between the two very different accounts given by the complainant and the appellant. We bear in mind that in those circumstances evidence about character could have an important bearing on a jury's deliberations.
18. In relation to the inadvertent admission of the interview question, the judge told the jury to ignore that reference and gave reasons why, stating that this was an important direction. Looked at on its own, it appears to us that that was sufficient, although we must go on to consider the matter in conjunction with the other complaints made.
19. By the end of the trial it is to be noted that each protagonist had to some extent impugned the other and had made reference to matters outside the central rape allegation. It had, as we have stated, in any event been agreed between the parties that some evidence of background should go before the jury. That included the turbulent relationship between the pair, and specific reference to the complaint which the police decided not to proceed with.
20. Whilst we accept that the complainant may well in her evidence have gone beyond what had been agreed between counsel, it does not appear that objection was taken at the time and the matter only surfaced after the error relating to the interview. It is also the case that when the appellant came to give evidence he gave some evidence of a similar nature, albeit perhaps not as extensive as that which the complainant had said.
21. Whilst it may be strictly true that, on analysis, not all of the allegations had gone into evidence by express agreement, by the time of the summing-up each side had given evidence about background other than the rape incident in terms generally unfavourable to the other. No objection had been taken at the time, and in effect we consider that the judge was entitled to regard what had happened as constituting some implied agreement. It seems to us that he sensibly told the jury that the allegations and counter allegations were background which the jury needed to know in order to understand the context in which the rape allegations had been made.
22. In our judgment, he rightly told them that such evidence was background evidence and that their key task was to concentrate on the evidence relating to the counts on the indictment. Given that in any event a degree of background had been admitted by express agreement, we do not think that the judge can be criticised for saying that this evidence was relevant.
23. Insofar as there was a conflict between the two, the judge had made clear that the burden of proof lay with the Crown and that the appellant had nothing to prove. We are satisfied that the jury would have understood that the resolution of background issues was to be approached in the same way as the central issues. We do not accept that the appellant did not have the opportunity to deal with matters raised by the complainant's evidence: he dealt with them generally and could have been more specific had he or his counsel wished.
24. Standing back and looking at the matter in the round, and bearing in mind the submission made to us as to the cumulative effect of what took place, we are nonetheless satisfied that the directions given were appropriate and that nothing occurred which could properly be said to impugn the safety of the convictions. This jury deliberated over a considerable period of time, during which it asked for additional guidance in relation to the ingredients of rape, but at no stage raised any question about the approach to matters which are the subject of the appeal. Moreover, despite extensive discussion between the judge and counsel whilst the jury were deliberating, there was no suggestion from defence counsel that the judge ought to correct or add anything to the directions he had already given to the jury. Those matters of course cannot be determinative in any way of the question which we have to decide, but they do perhaps give a degree of support to the conclusion which we have reached.
25. In those circumstances, we dismiss this appeal.