Court of Appeal in Northern Ireland Decisions

Neutral Citation No [2012] NICA 41	Ref:	MOR8608
Judgment: approved by the Court for handing down	Delivered:	8/10/12
(subject to editorial corrections)*

 

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_______

THE QUEEN

-v-

A and B

_______

Before: Morgan LCJ, Higgins LJ and Girvan LJ

_______

MORGAN LCJ (ex tempore)

 

[1]        On 15 November 2011 at Newry Crown Court before His Honour Judge Finnegan Q.C., both appellants were arraigned and pleaded not guilty to the four counts against each of them being attempted vaginal rape, oral rape, assault by digital penetration and sexual assault all allegedly committed during the early hours of 19 July 2010 in County Down. Their trial took place at Armagh Crown Court before His Honour Judge Devlin from 24 January 2012 to 14 February 2012. On 14 February both appellants were convicted of oral rape but acquitted on the other counts. They were each sentenced to determinate custodial terms of 7 years comprising three and a half years in custody and the same period on licence. Both appeal against conviction and sentence.

 

Background

 

[2]        B was 10 days short of his 17th birthday at the time of the offence and 18 years old when he was sentenced. A was 16 years and four months old at the time of the offence and 2 days short of his 18th birthday when he was sentenced. The victim was 17 years and 11 days old when the offence was committed. She lived in the Republic of Ireland but was staying with her friend in County Down. On the evening of 18 July 2010, they and some friends went to a nightclub in County Down. On that evening the victim consumed alcohol and was separated from her friends at the night club.

 

[3]        She was observed leaving the night club with two males. She was seen as so unsteady on her feet that three female witnesses who were in a car approached the victim expressing concern about her state. These three females said they observed two males dragging the apparently heavily intoxicated victim along the street. The victim was lifted onto a wall. One male was seen with an open belt and the other male had his hand up the victim’s skirt. When challenged one of the males said they were going to have a threesome. The victim was unresponsive to the females and kept repeating “[C]”, a girls name. They assumed this was her name. The males indicated they were going to get the victim a taxi. That is to be contrasted, however, with CCTV images of the victim leaving the nightclub hand in hand with the appellant B and apparently walking in a normal fashion.

 

[4]        Later, the three females in the car tried to find the victim again as they were concerned about her. They found her at 12.30am up a laneway with the two males. They said the victim was in a dishevelled state and appeared to be crying. The victim spoke to the girls and responded to their questions. She named her friend ‘C’ and agreed she wanted them to find her friend. The girls agreed that the victim was able to understand their questions and appeared to be more responsive than she had appeared earlier. They drove off to try to find the victim’s friend.

 

[5]        The three females in the car later noticed the two males with the victim coming from the laneway to the nightclub. Her skirt was now up to her waist and she had no pants on. Her legs were cut and she was covered in mud. They observed one of the males slap the victim on her backside to get her on the footpath and she was then left on the ground by the night club. The three females assisted the victim to find her friends and drove them back to the home of the victim’s friend.

 

[6]        The victim had limited memory of the events. In police interviews the appellants told the police they both tried to have vaginal sex with the applicant but couldn’t due to her awkward position. They told the police the victim performed oral sex on both of them and that they both digitally penetrated the victim’s vagina. Both agreed that they had kissed the victim. Both appellants said the victim consented to all of the sexual activities carried out between them.

 

[7]        The appellants’ skeleton arguments state that CCTV footage from a local nursery appeared to show the appellants touching the complainant in a sexual manner and that Count 4 was based on the activity seen on the CCTV footage rather than on the admissions set out in the preceding paragraph. The appellants say it is clear from the timing on the camera together with other timings available that the activity captured on the CCTV footage came after the events which formed the basis of counts 1 to 3.

 

 

 

 

The appeal against conviction

 

[8]        The appellants submit that the only issue for the jury on all four counts was whether they were satisfied beyond a reasonable doubt that the complainant had not consented to the activity in question and if they were so satisfied that the two appellants did not reasonably believe that she was consenting. It is asserted the Crown’s case was the complainant was never in a fit condition to consent to sexual activity on the evening in question. The Crown called the three witnesses who had been in a car and saw the complainant with the defendants shortly after they left the night club. It is stated their evidence was the complainant appeared not to know where she was and seemed to be heavily intoxicated. They gave evidence that a short time later they found them in an alleyway. The witnesses said on this occasion the complainant appeared to be a bit more alert than earlier. They continued to say the complainant did not appear to know where she was or what she was doing.

 

[9]        The appellants state that the arrival and departure of the car containing the three witnesses was captured on the CCTV footage and there was no doubt the sexual activity took place in the period of about 30 minutes after the car left the alleyway. There was no precise evidence as to the order of events which formed the basis of counts 1, 2 and 3 and all that could be established was that they must have occurred by the time of the activity caught on the CCTV footage from the nursery school.

 

[10]      The appellants acknowledge it is possible to reconcile the verdicts on counts 1, 2 and 3 with each other because there was evidence from the interviews that just before the time when the complainant was giving the appellants oral sex she had fallen to the ground. It is accepted that the jury would, therefore, have been entitled to conclude at that stage they could be satisfied beyond a reasonable doubt either that she was not in a condition to give consent or that the appellants did not reasonably believe that she had consented. Since that activity could have taken place after counts 1 and 3 a verdict of guilty on count 2 would not necessarily be inconsistent with the not guilty verdicts on counts 1 and 3.

 

[11]      It is argued that it cannot be said that the guilty verdict on count 2 can be consistent with the not guilty verdicts on counts 1, 3, and 4. It is asserted the counts were part of a sequence of events occurring at much the same time and the appellants’ submission is that count 4 undoubtedly occurred after the acts alleged in count 2. It is contended this could only mean the jury were not satisfied she was not consenting to activity after they had already reached the conclusion she was incapable of giving a valid consent and had not been consenting for the purposes of count 2. The appellants submitted it would be inconsistent for a complainant in circumstances such as these to be able to give a valid consent to activity after the time when the jury had already decided she was not in fact consenting to activity that had taken place shortly beforehand. In those circumstances a guilty verdict on count 2 was not logically open to the jury.

[12] The law in this area is well established and was set out by Kerr LCJ in R v X [2006] NICA 1:-

 

“[26] ... The law in relation to inconsistent verdicts was considered by the Court of Appeal in England in R v G [1998] Crim LR 483. In that case Buxton LJ cited with approval the following passage from the case of Clarke and Fletcher, where Hutchison LJ said: -

 

‘We approach the present case on the basis that it is for the appellant to show (1) that the verdicts are logically inconsistent and (2) that they cannot be sensibly explained in a way which means that the conviction is not unsafe. Thus an appellate court will not conclude that the verdict of guilty is unsafe if, notwithstanding that it is logically inconsistent with another verdict, it is possible to postulate a legitimate train of reasoning which could sensibly account for the inconsistency’.”

 

[27]      Buxton LJ also referred to the case of Bell in which Rose LJ said: -

 

”There have recently been a number of appeals to this court based on allegedly inconsistent verdicts, and it is perhaps therefore worth emphasising that it is axiomatic that, generally speaking, logical inconsistency is an essential prerequisite for success on this ground: see Durante 56 Cr App Rep 708. … there are, of course, exceptional cases, of which Cilgram [1994] Crim LR 861 provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is to be noted that in Cilgram this Court, differently constituted, expressly rejected the submission that, where a complainant's credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant’s allegations.”

 

[28]      Commending this analysis, Buxton LJ continued: -

 

“As it seems to us, and as it seemed to the court in Bell, it does not follow that verdicts are logically inconsistent just because they all depended on the evidence of the same person. A person's credibility, any more than their reliability, is not necessarily a seamless robe. The jury has to consider, as the jury in this case was rightly told, each count separately. It may well take a different view of the evidence as to its reliability in one case rather than the other. Further, it is in our view too simplistic to make the stark distinction between credibility and reliability that was sought to be made in the argument before us. What the jury has to decide is whether on all the matters put before it it is satisfied so that it is sure of the particular matter that was alleged under each count.

…

In our judgment it does not follow as a matter of logic, any more than in the judgment of the court in Bell it followed as a matter of logic, that, even where credibility is in issue and evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant's allegations.”

 

[13]      In the course of the hearing we noted that there does not appear to have been any attempt to identify for the jury the incidents upon which the prosecution relied for the fourth count. We accept that counsel for A proceeded on the basis that the count referred specifically to the incident captured on CCTV. We have had the advantage of reviewing the CCTV footage. It shows the complainant being held up by B and A apparently fixing his belt. The complainant is naked from the waist down at this point. Her skirt appears to have got caught up underneath her top. Both appellants touch her and as a result her skirt is brought down over her bottom. It seems to us that the jury had to determine whether they could be satisfied that this was a sexual touching and not merely an attempt to cover the complainant’s embarrassment. In our view the not guilty verdict on count 4 even if it related solely to the incident shown on CCTV was explicable on the basis that the jury gave the appellants the benefit of that doubt.

 

[14]      In those circumstances there is no inconsistency established in respect of the finding on count 2 and the appeal against conviction is dismissed.

 

 

 

Sentence

 

[15]      The learned trial judge in his careful sentencing remarks correctly identified the Court of Appeal’s guidance in paragraphs [18] and [19] of AG’s Reference No. 3 of 2006 (Gilbert) [2006] NICA 36 as to the levels of sentencing in rape cases in this jurisdiction:

 

“[18] Sentencing for rape in Northern Ireland has broadly followed levels in England and Wales although traditionally a somewhat higher starting point had been adopted. Thus a starting point of seven years rather than five years was considered appropriate in R v Molloy [1997] NIJB 241 where this court stated: -

 

“We would return to the point which the court adumbrated in R v JM (1997, unreported), that in view of the increasing frequency of cases of rape, the courts will have to give serious consideration to reviewing the starting or baseline figure of 7 years for a contested rape. We consider that sentencers should in any event regard it as no more than a general guide, rather than a fixed tariff for rape cases. Certainly in cases where the offence is aggravated by violence, sexual indignities or perversions, the scale should rise steeply and judges should not hesitate to visit such cases with penalties that they consider appropriate.”

 

[19]      More recently, in Attorney General’s reference (No 2 of 2004) (O’Connell) [2004] NICA 15, it has been stated that sentencers in this jurisdiction should apply the starting points recommended by the Sentencing Advisory Panel in England and Wales in its 2002 guidelines – these are 5 years with no aggravating or mitigating factors and 8 years where a number of enumerated features are present. New draft guidelines have been prepared for sentences for offences (including rape) provided for in the Sexual Offences Act 2003. It may be necessary to review sentencing levels after the new guidelines for England and Wales have been finalised, although, of course, these will not apply directly to Northern Ireland”.

 

[16]      He concluded that the evidence indicated that these appellants had acted together in carrying out this offence and accordingly adopted an 8 year starting point. It was accepted that this was not a case where the victim was subject to violence or threats but that the conduct aggravating the offending was the fact that each of these appellants orally raped the victim for the periods indicated in their admissions. We accept that in determining whether to adopt a higher starting point in these circumstances one should not adopt a mechanistic approach. We consider that the starting point should have been somewhat lower than 8 years.

 

[17]      It was submitted that in light of the jury’s verdict this was a case where, at least, it was concluded that the appellants had engaged in sexual activity but neither of them reasonably realised that the victim was not consenting until the oral sex incident. Although there is some evidence of consensual activity when the victim first left the nightclub we do not accept that this is in the same category as cases where there is consensual activity during which the offender goes further than he should. It is, however, a factor in determining the culpability of these young offenders that the jury was not satisfied that they realised that the victim was not consenting at the earlier stages. We also accept, however, that their conduct in abandoning this victim outside the nightclub in a state where she was naked from the waist down was deplorable.

 

[18]      These offenders were 16 when they committed these offences. There was a delay of 20 months before this case was determined. In the case of young offenders such delays are material. They had previous good characters. In all the circumstances we consider that a sentence of 7 years is manifestly excessive. We substitute a determinate custodial sentence of 5 years comprising 2.5 years in custody and 2.5 years on licence. The SOPO will similarly be varied to 5 years.