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CASE NO: 99/6108/X5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Thursday 18 April 2000
Before:
LORD JUSTICE BUXTON
MR JUSTICE MOSES
And
HH JUDGE COLSTON QC
____________________
Regina
V
P.T
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
Counsel for Appellant P.J Murphy (Miss L. Murrey)
Counsel for Crown R.W Twomlow
____________________
Judgment
As Approved by the Court
Crown Copyright ©
JUDGMENT
LORD JUSTICE BUXTON:
The trial
Mr T., now 22 years of age, was convicted in the Crown Court at Cardiff on 6
June 1997 on two counts of rape, and sentenced to 42 months on each count
consecutively, a total of 7 years. The complainant in count 1 was J.S., then
aged 16, the rape being alleged to have occurred on 15 November 1996. The
complainant in count 2 was D.M., then aged 15, that rape being alleged to have
occurred on another date in November 1996. The two complainants knew each
other, but it was not the case at the trial either that the complaints had been
brought on a collusive basis; or, on the other hand, that the evidence on the
one count could be used as similar fact evidence on the other count. It was Mr
T.'s case that while he had had sexual intercourse with J.S., that had been
with her consent; but that he had had no intercourse with, and indeed did not
know, D.M..
J.S.'s evidence was that she knew Mr T., but not well. Mr T. alleged that they
had had intercourse together on one previous occasion, some two years or more
before November 1996. J.S. denied that she had ever had intercourse with Mr
T., but she had heard that he had spread rumours to that effect. There had
been a confrontation between them on the matter, at which Mr T. accused her of
spreading the rumour and threatened her. That was the last occasion on which
they had spoken before the alleged rape. Mr T.'s evidence at the trial
appeared to confirm that last point, since he said that he had not spoken to
J.S. for some two and a half years before 15 November 1996. J.S. said that on
15 November 1996 she was asked by a 14-year old boy, J.C., to go to the house
of a R.V. where he was babysitting to keep him company. R.V. was Mr T.'s then
girl-friend. J.S. arrived there at about 7.30pm to find Mr T. present. The
evidence of both J.S. and C. was that Mr T. asked C. to go and buy him a
bottle of Coke, which he did. Before that, however, according to C., Mr T. had
asked J.S. to have intercourse with him and she had refused. Once C. had gone
on his errand, according to J.S., Mr T. violently raped her. She resisted,
shouting and screaming. Mr T.'s account was that C. had told him that J.S. was
coming and would like to have intercourse with him again (something that C.
denied in his evidence). When alone with J.S. he asked her to have
intercourse, and she agreed; they had intercourse consensually and without
violence. Once that was over he got dressed and left the house. He said that
he had had consenual intercourse with J.S. on one further occasion, again at
R.V.'s house. That was about two weeks after the alleged rape. Mr T. said
that that had been on the same occasion as D.M. came to baby-sit, to which
D.M.'s allegation of rape, to which we will shortly come, related.
J.S.'s evidence continued that she left the house, on her way out seeing a man
called N.E. who asked her if Mr T. had "banged" her. She did not reply. E.,
who gave evidence for the prosecution, said that he had called at the house on
a day in November 1996 and seen through the window what appeared to be two
people having intercourse, without screaming or shouting. He returned half an
hour later, when the door was opened by J.S.. E. said that he told her that he
knew that she had been having intercourse; she blushed, but without appearing
distressed. J.S. also said that she passed C. as she ran away from the house;
he asked her what was the matter but she did not reply. C.'s evidence as to
that incident was that J.S. had been crying; when asked why she had said that
she was upset at Mr T.. J.S. said that she then ran home, to her grandparents'
house where she was living. She did not want to tell her grandmother what had
occurred. The grandmother, P.S., gave evidence that there had been an evening
when J.S. had come in later than usual, at about 10.20pm, and appeared very
distressed. It was pointed out in the appeal on behalf of Mr T. that that
return to the house, if it occurred on the evening in question, appeared to be
a substantial time after the time of the alleged rape.
J.S. did not immediately report the rape. She said that Mr T. had threatened
to beat her up if she told anyone. She went to the family planning clinic,
giving a false name. Two days after the rape she gave a full account of it to
a friend, R.B.. On 15 December 1996 they both attended the police station and
made statements. She also told another friend, A.K., but denied that she had
then said that she was going to obtain compensation for the rape. R.B. gave
evidence at the trial for the defence, in which she said that J.S. had asked
her to lie to the police, and had told her that she had consented to
intercourse with Mr T.. Her statement of 15 December, in which she had set out
J.S.'s report to her of the rape in terms consistent with J.S.'s evidence, and
stated J.S.'s distress, and fear of Mr T., had been untrue, and made at the
request of J.S.. A.K. also gave evidence for the defence, to the effect that
J.S. had told her in February 1997 that Mr T. had not raped her, and she was
making the allegations to get her own back.
A further defence witness was L.W.. He described an evening when J.S. had come
to the house of D.M.'s parents, where a group of friends were gathered, asking
for a condom so that she could have sex with Mr T.. An hour later he saw J.S.
in the street, where she bragged about having sex with Mr T.. L.W. said that
it was still light at the time, so this must have occurred at a weekend; the
evidence of both J.S. and Mr T. about the encounter on 15 November was that it
had taken place after dark, as indeed the timings attributed to it indicate.
D.M. said that she had been a friend of J.S., but by the time of the trial was
no longer such. On a date in November 1996 she had been asked to baby-sit at
R.V.'s house and went there with her elder sister L. at about 10pm. J.S. was
waiting outside, and asked D.M. to babysit because she could not stay. D.M.
went to R.B.'s house to ask if she could assist. R.B. in her evidence said
that when she went back with D.M. to R.V.'s house they found J.S. in what R.B.
described as a "petrified" state for fear that Mr T. might return. Because of
J.S.'s state R.B. agreed to stay with D.M., and J.S. immediately left. D.M.
continued that when Mr T. came home he tried to persuade the two girls to stay.
They made to leave, but Mr T. persuaded D.M. to return. Any scepticism that
might be invoked by the apparent naiveity of D.M.'s alleged decision is perhaps
mitigated by the reflection that D.M. was a mere 15 years of age; Mr T. at the
time was eighteen.
D.M. then said that, once she had returned to the house, R.B. having left, Mr
T. violently raped her. R.B. confirmed in her evidence that D.M. had returned
to the house alone. She added that on the following day D.M. was in an unusual
mood, and in the evening told her that Mr T. had raped her.
D.M. said that when she escaped from R.V.'s house she ran home in distress and
told her sister L. what had occurred. She made no complaint to her mother or
the police for some months, and agreed that she had told R.B. that she was
going to drop the case. That had been because she had been subjected to a
campaign of intimidation, including the breaking of windows at her home, she
said by A.K. (something that A.K. denied). L. gave evidence confirming D.M.'s
state of distress, and her evidence that because of it they had slept the night
together. She said that the following day D.M. had given her a full account of
the rape, J.S. being present on that occasion.
The appeal and the application to call new evidence
Mr T. did not appeal against his convictions, nor could he have done. The
summing-up of the learned trial judge, and his conduct of the trial, cannot be
criticised in any way. He made it entirely clear to the jury that they had to
decide between conflicting testimonies, and the jury decided that matter
unfavourably to Mr T.. The appeal is, rather, based on new evidence that has
come to hand since the trial.
Under section 23 of the Criminal Appeal Act 1968 this court's task is divided
into two stages. First, we have to decide whether to receive the new evidence.
Guidance as to our approach to that task is provided by section 23(2). Then,
to the extent that new evidence is received by us, we have to decide, in the
light of that evidence and of all other circumstances of the case, whether the
original conviction was safe: Stafford v DPP [1974] AC 878, as further
explained in this court in Lee [1984] 1 WLR 578 at p585, per Ackner LJ.
In a case such as the present, however, it is not possible to keep those two
stages as separate as a matter of procedure as the foregoing analysis would
seem to suggest. That is because, in respect of the evidence that we were
invited to receive, it was not possible to decide, for instance, whether it was
capable of belief, as section 23(2)(a) requires us to decide, without actually
hearing it and the witness who gave it. We therefore heard all the appellant's
new evidence, making clear that in the first instance it was being heard de
bene esse, but with the objective of determining, first, whether it should
be received, and second, if received, whether and in what manner it could be
acted on.
We further had well in mind, in both parts of this process, the evidence that
had been given at the trial, and the cases and arguments that had been there
adduced. The way in which the new evidence relates to the original case, and
any explanation for differences between the testimony now given and that given
at the trial, is of potential importance not only at the second stage of
assessing the overall safety of the conviction but also at the first stage of
assessing whether the evidence now given is capable of belief.
Accordingly, we heard on behalf of the appellant L.E., J.H., C.S. and L.W.. We
also listened to two tape recordings made by L.W., one of a conversation with
J.S. and one of a conversation with D.M.. The prosecution applied to call in
rebuttal two police officers, and in addition J.S. and D.M.. In the event we
heard all of those witnesses apart from D.M.. The most convenient course will
be to deal with each witnesses evidence seriatim. Purely by way of
introduction, however, we record that the appellant's evidence was directed at
five subjects:
(I) a statement made by J.S. prior to the rape that she had had [consensual]
intercourse with Mr T..
(II) a request by J.S. for a condom on the night of the rape.
(III) boasting by J.S. later on that same night about having had consensual
intercourse with Mr T..
(IV) oral evidence of admissions made post-trial by J.S. that she had
fabricated the case.
(V) tape recordings to the same alleged effect as in (IV) above, but
implicating D.M. as well as J.S..
L.W. (formerly E.)
L.E. (as we will call her, that having been her name at the time of the
incidents under investigation) did not give evidence at the trial. She made a
statement in these proceedings on 24 October 1998, the substance of which she
repeated before us.
Her evidence concerned items (II) and (III) listed above. As to the request
by J.S. for a condom she said that on the night of the alleged rape J.S. had
come to D.M.'s house, where a group of friends including D.M., C. and L.W. were
present, and asked to be provided with a condom. Later that evening L.E. was
in the street about to get into her car with her then boyfriend, now husband,
when J.S. came up to them and described in graphic and appreciative detail the
sexual intercourse that she had just had with Mr T..
L.E. further said that some weeks later she had been visited by police officers
who did not tell her that they were investigating the rape, but asked about the
condom incident, and whether she had supplied J.S. with a condom. L.E. told us
that she assumed that the enquiries concerned Mr T., and she told the officers
the matters that she had set out in her evidence. They appeared to note them
down, but she heard no more about it and was not asked to attend the trial.
She by then had lost contact with L.W., and did not know that the trial was
taking place, or that he was giving evidence substantially in the terms of her
own statement to the police.
She further said that shortly after the police's visit she was telephoned by
J.S., who she described as being at that time a good friend of hers, and asked
her what she had said to them. L.E. told J.S. that she had said nothing; she
explained this lie by saying that she found J.S. intimidating. L.E. said that
J.S. had then suggested that they if L.E. were further contacted by the police
they should co-ordinate their stories, with a view to L.E. telling the police
that J.S. had complained to L.E. that she had been raped. In her evidence J.S.
agreed that she had telephoned L.E. to ask about the police's visit, but
strongly denied that she had asked L.E. to lie on her behalf.
We heard evidence from the two police officers who interviewed L.E.. Their
recollection was entirely based on their notebooks, which however recorded that
L.E. had not been able to give them any information. Having heard those
officers, we are entirely convinced that, had L.E. related to them the graphic
detail that she related to us they would have regarded it as highly
significant, taken a formal statement, and followed the matter up. L.E. was
not telling the truth in this part of her evidence, and that in turn casts
serious doubt on the rest of her testimony. The test imposed by section
23(2)(a) of the 1968 Act is not a demanding one, but this evidence does not
pass it. L.E.'s evidence is not capable of belief.
There are two further matters that arise. First, we find very unsatisfactory
the explanation that we were given as to why L.E.'s evidence was not adduced at
the trial, a matter that we have to take into consideration under section
23(2)(d) of the Act. That was based solely on the alleged failure of the
prosecution to disclose to the defence the statement allegedly made, but as we
now know not made, to the police. No explanation was offered as to why L.E.
was unaware about, or took no action in respect of, the trial of Mr T.: matters
that on the face of her statement clearly required such explanation. Further,
L.W. told us that he had given L.E.'s name to Mr T.'s solicitors before the
trial as a person who had been present when the request was made for the
condom. No explanation was given of why she had not been contacted
thereafter.
Second, there is in any event a major difficulty in respect of the condom
incident, item (II) above. It was Mr T.'s case that before J.S. came to the
house on the night of the rape, he having been told by C. that she would be
willing to have intercourse with him, he had not spoken to J.S. for some two
and a half years. It really strains credulity very far to think that, against
that background, J.S. before encountering Mr T. would have been confidently and
publicly asking around for a contraceptive: and, according to L.W.'s evidence
to which we will shortly come, making plain that that was in order to have
intercourse with Mr T.. Those considerable doubts as to how J.S. could have
assumed that intercourse was to take place on that particular evening must be
reinforced by the fact that J.S. had babysat at R.V.'s house on a number of
previous occasions though, on Mr T.'s evidence, without encountering him.
This discrepancy between Mr T.'s evidence as to the state of his current
relations with J.S., and the evidence given by L.W. as to J.S.'s demeanour on
the night of the rape, does not seem to have been appreciated at the trial; nor
was it appreciated by us until our attention was drawn to it at a late stage of
the appeal. It is a serious and substantial matter to put in the scales when
weighing the evidence as a whole.
J.H.
J.H. did not give evidence at the trial. She made a statement in this appeal
on 27 October 1998. In that statement she described how she had been the
girl-friend of Mr T. for about a year and a half when she was fourteen and
fifteen years of age, during which time they regularly had sexual intercourse
on a consensual basis. In her statement she said that the relationship had
"just fizzled out as many school relationships do" but that the two of them
remained and have remained ever since very good and close friends. This
account took on a different aspect in her evidence to us. In her evidence, she
said that J.S. had been the reason why her relationship with Mr T. had ended.
It was to the intercourse between J.S. and Mr T. that caused the break-up that
the first part of Miss H.' evidence (item (I)) above) was directed. And she
explained the fact that she had not given evidence at the trial by saying that
she was not seeing much of Mr T. during that period, was not aware of the
trial, and in any event did not wish to become involved. She said that that
was all consistent with her having made a section 9 statement in 1998 saying
that she had remained good and close friends with Mr T. since 1994.
As we have said, the first part of Miss H.' evidence related to a statement
allegedly made to her by J.S. at, it would seem, the end of 1995 that she had
had intercourse with Mr T.. We do not pause to consider the admissibility at
any trial of that evidence, because in the general context of Miss H. evidence
as a whole we do not find it to be reliable. We are of the same view of the
second part of her evidence, that about three months after Mr T. had been sent
to prison, J.S. had on one occasion when she met her casually taunted her by
saying that she had fabricated the allegations against Mr T.: that is evidence
falling into category (IV) above. Miss H. was by that time 17 years of age,
and having seen her in the witness box we do not think that she would have been
incapable of taking appropriate action in relation to that statement if indeed
it were made to her; yet she delayed some months before even approaching Mr
T.'s family, and it was not until a year after the conversation that she made
her statement in these proceedings. We are unable to reconcile this history
with her stated commitment to Mr T.. While we do not go so far as to say that
her account is incapable of belief, it is not evidence that we find credible,
and we are unable to act on it.
There was a further very unsatisfactory aspect of Miss H.' evidence, or rather
of the way in which it was put before us. An explanation was clearly required
of why the first part of her evidence had not been given, or at least sought
to be adduced, at the trial. This court has recently said, in Trevor
[1998] Crim LR 652, that where an explanation of any detailed nature is called
for, it should be given in affidavit or statement form. That was not done in
the present case, the only explanation being a short note on Form W which said
that the evidence had not been given because Miss H.' father had not wanted her
to become involved. In her evidence Miss H. said that that had not been the
case. Her father had only taken an interest in the matter in February of this
present year, that is to say some three months after Mr T.'s solicitors had
signed Form W, and approaching three years after the trial. Her explanation
for her evidence not being available at the trial was that which we have
already set out.
We were not able to pursue this matter further, and it did not in any event
arise because of the view that we took of Miss H.' evidence. However, had we
taken a different view, we would have had very carefully to review whether the
consideration referred to in section 23(2)(d) of the Act nonetheless inhibited
us from receiving this evidence.
C.S.
C.S. did not give evidence at the trial. She made a statement in these
proceedings on 26 October 1998. In that statement she said that Mr T. was a
close friend of a friend of hers. In her evidence to us she said that that had
not been true, but she merely knew people who knew him.
Her evidence related to a conversation at a bus stop in the summer of 1997.
She saw J.S. talking to L.W. and went up to speak principally to L.W., who was
a friend of hers. Although, according to L.W., the conversation was in general
terms, C.S., who was only slightly acquainted with J.S., asked her if it was
true that Mr T. had raped her. C.S. said that J.S. had replied that he had
not. J.S. agreed that a conversation had occurred between the three of them at
the bus stop. She said that she had never before seen C.S., and the latter had
been aggressive, calling J.S. a liar and demanding to be told the truth. J.S.
in her evidence to us was adamant that she had never said that Mr T. had not
raped her, and would not have done so even to stop C.S.'s aggression.
L.W., when he gave evidence before us, supported C.S.'s account. He said that
it was because J.S. had admitted that she had lied that he later agreed with
C.S. that they should try to obtain such an admission on tape, with the results
that we shall shortly describe. Mr Murphy argued that that resolution on their
part gave credence to their evidence that J.S. had said things that merited
recording. We have given that point careful consideration, but we are not
prepared to accept the evidence of C.S. and L.W. in preference to that of J.S..
That must to some extent be a matter of impression, but we also have in mind
that, unlike the admission alleged by J.H., this was not alleged to have been a
boastful or flaunting statement, but one extracted by questioning. If J.S., or
anyone else in her alleged position, had been minded to admit perjury, we think
it most unlikely that she would have done so under questioning in public from a
person whom on any view she hardly knew.
L.W.
We have described the evidence given by L.W. at the trial. In the appeal he
gave or sought to give further evidence about those matters, and in addition
gave evidence of the bus-stop conversation just discussed, and produced tapes
of two conversations, one with J.S. and the other with D.M., which he had
recorded unknown to them. We deal with those matters in turn, addressing the
tapes in a separate section of the judgment.
We have already indicated the difficulties that we see in relation to the
alleged request for the condom. L.W. said in terms before us, as he had said
at the trial, that J.S. said that she wanted a condom so that she could shag
Perry Thomas. He had been in D.M.'s house when this request was made there,
without success; he added before us that J.S. had then gone out into the street
and asked people there, L.W. being able to hear from the house what she was
saying. Bearing in mind that all of this was supposed to have occurred at
about 7pm on a November evening, that evidence only reinforced our doubts about
the whole incident. And although L.W. had filed an affidavit shortly before
the hearing of the appeal in which he had sought to resile from his evidence
at the trial that this incident, and the subsequent boasting by J.S., had taken
place in daylight, in his evidence before us he was not inclined to accept that
he must have been mistaken on that point.
The boasting to which L.W. testified both at the trial and before us (item
(III) listed above) seemed to be a different incident, though the content of
the boasting was explained in identical terms, from that to which L.E.
testified, since the latter had been adamant that only her now husband had been
present. Quite apart from the inherent fragility of the evidence in relation
to the incident, however, there were other and further reasons why we were
unable to accept that it had occurred.
The jury heard a certain amount of other evidence as to J.S.'s demeanour. We
have recounted what was said at the trial by her grandmother. We have
considered, but find it impossible to draw any conclusions from, the point made
on behalf of Mr T. that as a matter of timing there was opportunity for J.S. to
have made boastful comments before returning home in a distressed state. And
we may note that it does not appear to have been suggested to the grandmother
at the trial that she was wrong, or lying, about J.S.'s state, but rather that
it might have been attributed to the comparatively recent death of J.S.'s
mother. A further consideration is, however, that at first sight it seems odd
that, after having been raped by Mr T., J.S. should have continued to visit
R.V.'s house. That point does not appear to have been taken up with J.S. in
cross-examination at the trial, and it is easy to see why not. A defence
witness, R.B., was expected to say, and as we have seen in the event did say,
that on the evening when R.B. went to the house with D.M., in order to relieve
J.S. from baby-sitting, J.S. was in a highly upset state, and "petrified" that
Mr T. would return before she could leave. It is very hard to reconcile that
description with a person who some two weeks previously had been publicly
boasting of her success in having intercourse with Mr T.. It is also
impossible to reconcile that description with Mr T.'s evidence that that was
the night on which he had his third and last episode of consensual intercourse
with J.S..
For these reasons, therefore, we do not accept L.W.'s evidence and do not act
upon it. There remains the tapes of conversations with J.S. and D.M., which
L.W. formally proved.
The tapes
Two tapes were produced, a comparatively short extract of a conversation with
J.S., and a longer conversation with D.M.. L.W. and C.S. were the other
parties to both conversations. It would appear that the tape that we had in
relation to D.M. related to the only occasion on which she was recorded. L.W.
said that he had taped conversations with J.S. on occasions other than that
produced, but nothing of relevance was said.
The manner in which these tapes were produced and dealt with in the appeal was
wholly unsatisfactory. Because of the need for covert recording, the tapes
were microtapes, not tapes of the conventional sort. They were, perhaps
understandably, not of good quality. A further problem was that, as L.W. said
in his evidence, he was anxious to keep the conversation going, and it was
clear that in pursuit of that, and no doubt in the hope of eliciting relevant
material, he and C.S. frequently interrupted or spoke at the same time as the
other party. In these circumstances, the tapes should have been subjected to
professional study, with the possibility of enhancement, and certainly should
have been transcribed on to tapes that could be played on a machine in court.
That is not only in the interests of convenience, but to enable all concerned
to hear the tape at the same time, so that uncertainties or disputes can be
dealt with on the spot. As it was, we had to listen to the tapes out of court,
on a hand-held machine. In that manner we did listen to the whole of the parts
of the tapes claimed to be relevant, and some parts of them more than once.
Transcripts were provided of the tapes, as they had been to the section 31
judge. It was only made clear shortly before the appeal opened that these had
not been professionally compiled, but had been made by Mr T.'s mother.
Although we would not wish to attribute to Mrs Thomas anything more than the
mistakes understandably made by an amateur attempting to decipher somewhat
confused conversations, there is no doubt that mistakes were indeed made. In
particular, after listening closely to a part of the conversation with D.M. on
which the appellant particularly relied in his skeleton, though in relation to
the case in relation to J.S. rather than to D.M., we concluded that various
statements had been attributed in the transcripts to the wrong speakers. Mr
Murphy, having had this particular example drawn to his attention, agreed that
that was so. We nonetheless carefully attended to the tapes as a whole, in
view of the importance placed on them in the appellant's case. We have to say,
however, that it is most unfortunate that the transcripts, off which it is
usually easiest to work, were to some degree unreliable. Such failure to
prepare the material properly in particular handicaps the section 31 judge who,
as in this case, is only provided with the transcripts.
The extract that we were given from the conversation with J.S. in our view
contained nothing that advanced Mr T.'s case. J.S. made no admission, nor
anything approaching an admission. Indeed, her only positive statement about
the actual events indicated that the day after the alleged events she had been
too frightened to go out or to go to school. Since we have not heard the other
conversations, not relied on by the appellant, we cannot judge what approach
L.W. and C.S. adopted to her. However, having heard the more extensive
conversation with D.M. we have reason to think that they would have made every
effort to elicit helpful information or admissions. We merely note that that
was not achieved.
The conversation with D.M. was similarly unrevealing. In the event it was only
relied on for one sentence, to which we will revert below.
J.S.'s evidence
J.S. gave her evidence in a condition of marked distress. We have warned
ourselves that there might have been a number of possible reasons for that
distress, not all of them helpful to the prosecution case. However, we are at
least satisfied that the distress was not simulated. We have dealt in the
course of reviewing the evidence on behalf of the appellant with the relevant
evidence of J.S., and indicated where we prefer her account.
There is one other matter that we should mention. At the end of her
cross-examination counsel asked permission to put to her a handwritten document
which was of a somewhat curious nature, but which appeared to contain an
account of or by J.S. which included a comment on Mr T.'s private parts. We
were told that this document had been in the possession of Mr T.'s solicitors
for about a fortnight. No notification had been given to the court of its
existence, or of the part that it was to play in the appeal, nor as we
understood had the prosecution been told about it. The procedure for the
conduct of fresh evidence appeals in this court is flexible, and necessarily so
in view of the wide range of different cases that it encompasses. However, it
was very unsatisfactory that we had no evidence at all as to the provenance of
the document, no explanation of how it had come to hand, and no prior warning
of the case to be built upon it. We saw no reason not to conclude that it had
been witheld in the spirit of ambush that still pervades litigation in the
Crown Court.
We were very doubtful whether in these circumstances we should permit it to be
used at all, but in the end concluded that fairness to Mr T. required that to
be done. J.S. when shown the document did not accept that it was in her
writing. In the absence of any further evidence about the document, and much
less of any handwriting evidence (no adjournment having been sought in order to
obtain such evidence) that was the end of the point.
The appeal in relation to D.M.
Very little has been said in this judgment about the case in relation to D.M..
That is because effectively nothing was produced in the appeal that undermined
the safety of Mr T.'s conviction on the count relating to her. Mr Murphy in
his submissions was reduced to saying that if the conviction in relation to
J.S. were unsafe, that in relation to D.M. must in reality fall with it; and
that there was one reply on the tape recording where D.M. appeared to accept
that J.S. had had consensual intercourse with Mr T., and that her willingness
to pursue her own complaint with that knowledge showed her unreliability. In
view of our conclusion with regard to J.S. the first point does not arise; it
was however perhaps fortunate for Mr T. that we were not invited to consider
the converse of the proposition. As to the reply on the tape, it is impossible
to draw any conclusion as to D.M.'s actual state of belief from one short reply
in a long conversation; and even less to draw the further conclusion that was
said to arise.
It should also be borne in mind that the case put at trial in relation to D.M.
was a strong one and, apart of course for Mr T.'s complete denial, largely
uncontroverted. Her sister L. gave cogent and detailed evidence as to D.M.'s
distress immediately after the rape, and of her prompt complaint about it. We
have not seen a transcript of L.'s cross-examination, but from the summing-up
it appears that it was not suggested to her that her evidence was collusive: as
it inevitably must have been if the defence case was correct. Even more
pressingly, R.B. who gave evidence for the defence said that D.M. had
complained to her of the rape on the night after it had occurred. We have well
in mind the limited force of evidence of recent complaint. In the present
case, however, such evidence, unchallenged as it was, was of some cogency.
We conclude that there are no grounds on which we could find that the
conviction in respect of the rape of D.M. was unsafe.
The appeal in relation to J.S.
The attack in the course of the appeal on J.S. was more detailed and
circumstantial than that on D.M., and has required a great deal more
investigation. We have however noted above evidence given at the trial and not
challenged before us which it is difficult or impossible to reconcile with the
case as put on appeal, and serious difficulties about the evidence given on
appeal which makes us unable to act on it. We do not need to repeat all those
matters, which we have reviewed in the course of describing that evidence. We
do not find the conviction in respect of the rape of J.S. to have been
unsafe.
This appeal is therefore dismissed in relation to both counts on the indictment.
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