Neutral Citation Number: [2004] EWCA Crim 3156
Case No: 2003/04399/B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 9 December 2004
Before :

LORD JUSTICE KENNEDY
MR JUSTICE HUGHES
and
MR JUSTICE SIMON
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Between :

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	JOHN FRANCIS		

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Mark Barlow for the appellant
Oliver Sells QC and Janet Weeks for the Crown

Hearing dates: 22nd November 2004
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Judgment
Lord Justice Kennedy : 
1.	On 26th June 2003 at the Central Criminal Court this appellant was convicted of six counts of rape and was sentenced to a total of 12 years imprisonment.  He now appeals against conviction by leave of the single judge, who granted leave to appeal only in respect of two grounds, and referred a third ground of appeal to this court.  The appellant also renews his application for leave to appeal against sentence after refusal by the single judge.
Facts.
2.	The appellant is a native of St Lucia who first came to the United Kingdom in 1976, and then on a more permanent basis in 1986.  He says that in St Lucia he worked in government service and as a senior trade union official.  He lived with a woman who we refer to only as Simone.  By her he had four children two of whom died.  The other two were girls, JT born in April 1984 and J born in January 1986.  It is his behaviour towards that last mentioned child which forms the subject matter of the indictment in this case.
3.	After the appellant came to the United Kingdom in 1986 he met and married Patricia, with whom he then lived.  He had three children by her born between March 1988 and November 1990.  
4.	In about 1992 the appellant formed a relationship with a third woman, Lorna, by whom he had three more children between January 1994 and October 1997.  
5.	During that period, in late 1994, Simone brought her two children to the United Kingdom because the eldest was suffering from sickle cell anaemia.  In about February 1995 Simone returned to St Lucia leaving those two children with Lorna.  J, the alleged victim, was then just 9 years of age.  
6.	The prosecution case was that between 1995 and 1998 the appellant regularly sexually abused J at various addresses, namely the home of Patricia and the appellant, the home of Lorna, and an empty flat.  There was no complaint at the time, but that, it is submitted, was because the appellant was a dominating, commercially successful and powerful man.
7.	On 21st January 1999 J’s sister, JT, was in hospital and told a nurse, Jacqueline Johnstone, that her father had been having sex with her sister.  That resulted in J being seen on the following day.  She confirmed that her father had been having sex with her, and there was then an interview which was video- recorded in which she said that it had happened at the various addresses with which she was associated, and that the last occasion was in August 1998.  There was one occasion, she said in a second video interview, when at Patricia’s address Patricia came in to the room whilst the appellant was having sex with her and the appellant threw a towel into Patricia’s face.
8.	J was medically examined by Dr Susan West who found her to be a 13 year old girl with no obvious abnormalities.  The examiner could introduce two gloved fingers into the vaginal opening with no discomfort, and felt no tight residual hymenal ring.  She said that her findings were consistent with an allegation of penile penetration, and with not being a virgin, but she could not assess the number of times that penetration had occurred. 
9.	Dr Aziz was also an experienced examiner but she did not examine the complainant.  She relied on the evidence of Dr West as to what could be found, and she concluded that there had been no pre-puberty penile penetration because there were no signs of damage.
10.	The initial investigations took a little time, and it was the prosecution case that the appellant, a man of good character, was using that time to set up the outline of his defence, which was that J had had sexual relations before she left St Lucia (at the age of 8½), that all of the allegations against him were lies, and that J and her sister and the three older women – Simone, Lorna and Patricia – all had reasons to tell lies about him.  He was interviewed in the presence of his solicitor in April 1999, and that is basically the position which he adopted then and thereafter.
The first trial.
11.	The appellant stood trial at the Central Criminal Court in October to November 1999, and was convicted of six counts of rape of J.  He was sentenced to 12 years imprisonment.  On 18th July 2002 this court granted him leave to appeal on limited grounds, and his appeal was allowed on 16th December 2002.  A re-trial was ordered, and it is against the decision reached at the conclusion of the re-trial that this appeal is brought.
Grounds of Appeal.
12.	The original grounds of appeal were drafted by leading counsel who appeared for the appellant at the re-trial, but who no longer represents him.  The appellant also drafted grounds of appeal of his own.  The single judge granted leave to appeal on two of the grounds drafted by counsel, namely –
(1) That the trial judge was wrong not to accede to a defence submission that the prosecution particularise the counts in the indictment at the close of the prosecution case, reliance being placed on R v Rackham [1997] 2 Cr App R 222.
(2) That the trial judge was wrong not to allow Dr Aziz to be re-examined as to the size of the appellant’s semi-erect penis, which she had recorded.  That was said to be relevant because she had said in cross-examination, as she had originally said in her witness statement, that the state of the hymen was consistent with penetration by things which included a smaller penis.
The single judge also referred to this court the appellant’s ground of appeal concerning the commission and treatment of hearsay evidence from nurse Jacqueline Johnstone, Lorna, and the complainant’s sister JT.
The appellant’s submissions.
13.	Mr Barlow, who now appears on behalf of the appellant, and to whom we are indebted, has taken a realistic and sensible attitude in relation to the first ground of appeal.  He recognises, as we do, that there was evidence which, at the conclusion of the prosecution case, would have enabled the prosecution to formulate counts in relation to specific incidents, such as in particular the occasion when Patricia was alleged to have entered the room, but that would have been in addition to rather than in substitution for the existing counts, because the prosecution case could not be tied to a few isolated and identifiable occasions, so in reality the appellant lost nothing by the refusal of the judge to require further particularisation.  That is why Mr Barlow, as he told us, finds the first ground of appeal difficult to argue.  We agree with him that it is not really arguable, and we therefore turn to ground 2.
14.	We understand that at the first trial Dr Aziz produced a model to demonstrate the size of the appellant’s penis when erect in order to support her thesis that such an organ would have caused damage if inserted into the vagina of the child.  It may be that those representing the appellant later came to the conclusion that the production of the model had been forensically counter-productive.  We do not know, but we do know that at the second trial leading counsel for the appellant deliberately decided not to lead evidence from Dr Aziz in chief as to the measurements which she had taken of the appellant’s penis when semi-erect.  Accepting the findings of Dr West, including the absence of any observations of damage, Dr Aziz concluded her examination in chief by saying “I do not think any penile penetration has taken place”.  Mr Oliver Sells QC, for the Crown, then cross-examined by reference to the findings of Dr West, and referred Dr Aziz to her report, in which she had said that Dr West’s findings were consistent with the complainant having been penetrated by an object smaller than the defendant’s penis, such as a small penis, fingers or a similar sized object.  It was against that background that Mr Rouch QC, for the appellant, sought to introduce in re-examination the measurements taken by Dr Aziz of the appellant’s penis.  Mr Sells objected, and the judge then heard submissions and made his ruling in the absence of the jury.  During the course of those submissions Mr Rouch said that he had not led the evidence in chief because of Dr West’s evidence (so clearly it was a deliberate decision not an oversight), but he contended that it became admissible in re-examination because Mr Sells had cross-examined about the size of the invading object.  The judge disagreed.  He ruled that if Mr Rouch wanted to introduce the evidence he should have done so in chief, and that Mr Sells had carefully cross-examined in a way that did not open the door to the introduction of the evidence in re-examination.  Mr Barlow concedes that in law the stance taken by the Crown can be justified, but he invited us to consider the effect of the exclusion of the evidence that the appellant had a large penis on the safety of the conviction.  He submits that if the jury had that in evidence it might have reinforced the defence argument that if J had been subjected to repeated intercourse with the appellant over a period of years as she alleged there would have been more damage, so, Mr Barlow submits, we should regard the convictions as unsafe.  
15.	We turn now to the third ground of appeal which Mr Barlow put at the forefront of his case and which we gave him leave to argue.  It can be summarised thus –
(1) In her evidence in chief Lorna said that in November 1998 she learnt from Patricia of her belief that the appellant was sexually involved with J, and she then spoke to J who broke down and said “it was all true and had been going on for years”, since just after her mother went back to St Lucia.  That led Lorna to telephone the NSPCC, and it was accepted that she had done that.
(2) If, as J alleged, the last act of abuse was in August 1998 (or if Patricia was right September 1998) then what was said by J to Lorna in November 1998 could be regarded as admissible on the basis that it was a recent complaint, but whatever the basis of admission the jury had to be directed as to how such evidence should be approached, and no such direction was given.
In Islam [1999] 1 Cr App R 22 Buxton LJ at 39 pointed out that without an appropriate direction jurors may not realise that a complaint is not independent evidence of that which is complained of, because a witness cannot corroborate herself, and such a complaint only helps the jury to decide whether what has been said on oath is the truth.  In that case the failure to give the direction resulted in the appeal being allowed.  
16.	As was made clear in Croad [2001] EWCA Crim 644, it does not matter how the complaint material gets before the jury.  If they have heard a previous account by the complainant which does not of itself constitute evidence then the standard warning is required.  In the present case the judge did no more than tell the jury to be quite careful about “second-hand evidence, that is comments which a witness makes about which they have no first-hand knowledge”.  That warning was repeated by the judge when dealing with what JT told the nurse, but it was plainly not the standard warning to which we have referred, and Mr Barlow submits that the absence of that standard warning in this case renders the conviction unsafe.
The Respondent’s submissions.
17.	In relation to the evidence of Dr Aziz Mr Sells submitted that a tactical decision having been taken not to lead the particular evidence in chief the judge was right to rule as he did in relation to re-examination.  Furthermore there was never any doubt as to the stance being taken by Dr Aziz, namely, as the judge said when summing-up –
“She had concluded that Dr West’s findings were consistent with penetration by an object smaller that the defendant’s penis, for example, smaller penis, fingers or similar objects….  What she says in her view there was no penetration pre-puberty, but she cannot exclude either a smaller penis or another object being introduced after puberty.”
So the jury was not in any way misled as to the effect of the evidence.
18.	Turning to ground 3 Mr Sells explained to us that before the start of the re-trial there was a discussion between counsel as to how to deal with the hearsay evidence, and in particular what the complainant and her sister were alleged to have said to others, much of which the defence wanted to introduce in order to support allegations of inconsistency.  Thus the evidence of what the complainant was alleged to have said to Lorna in November 1998 was led, by the prosecution as part of the history, and, Mr Sells submitted, no “recent complaint” direction was required in relation to it.  As Mr Sells points out, the trial judge invited counsel to indicate if there were any omissions or corrections to be made in relation to his summing-up, and nothing was said, so it is clear that at the time of the trial no counsel considered that a recent complaint direction was required.
Our conclusion on Grounds 1 to 3.
19.	For the reasons given in paragraph 13 above we are satisfied that there is no substance in the first ground of appeal.  
20.	As to the second ground of appeal we consider that the evidence which Mr Rouch wanted to introduce in re-examination should have been admitted.  The form of cross-examination was such that in our view the material became admissible in re-examination.  But even if we are wrong about that, it seems to us that in a case such as this the judge should have hesitated to exclude evidence which was potentially relevant unless he came to the conclusion that the evidence had been deliberately withheld in order to introduce it at a later stage, or that its late production would be prejudicial to the prosecution case.  It is not suggested that there was justification for either of those conclusions in this case.  But the fact that, in our judgment, Mr Rouch should have be allowed to lead the evidence is not decisive.  What matters is whether the absence of the evidence renders the convictions unsafe, and in our judgment it does not have that effect.  As Mr Sells pointed out, the jury heard the evidence of Dr Aziz, and were reminded of it in the summing-up.  They knew that in her opinion the state of the complainant’s private parts was not consistent with full penetrative sexual intercourse by an adult male over a period of years, but nevertheless they decided to convict.  Even without measurements the point being made by Dr Aziz was easy to grasp, and we simply do not accept that the production of measurements would have had the decisive or even any significant effect.  That must have been the opinion of at leading counsel for the defence when he examined Dr Aziz in chief, and in our opinion he was right.
21.	As to ground 3, the failure to assist the jury as to how to deal with the evidence of complaints, we accept that in general the appropriate warning should be given, but in this case it was accepted that by late 1998/early 1999 J was alleging to her sister as well as to Lorna that her father had been having sexual intercourse with her for some time, hence the conversation between JT and the nurse of 21st January 1999.  For sound tactical reasons defence counsel wanted the jury to know what J was then saying.  It was anticipated that it would be possible, by reference to that evidence, to demonstrate inconsistency.  That being the issue which the jury was invited to consider we find it difficult to envisage what would have been the impact of the usual warning in this case.  If, as we believe, the warning which should have been given would not have had any real impact, then its omission cannot render the conviction unsafe, and it is not surprising that the need for the warning did not even occur to counsel or to the trial judge.  This conclusion takes account of the appellant’s letter of 23rd November 2004, and its enclosures, which was written to the court after we heard the appeal.
The remaining grounds of appeal.
22.	In addition to the three grounds of appeal considered above, Mr Barlow asked us to consider the written submissions that the appellant had lodged with the Criminal Appeal Office. Some of these submissions relate to the grounds upon which we were addressed by Mr Barlow. Some are new and different grounds; and we have focussed on these. 
23.	First, the appellant seeks to argue that there was not sufficient evidence of sexual intercourse and absence of consent to go before the Jury. In our view there plainly was and the evidence was properly set out in the course of the summing up. 
24.	Secondly, the appellant seeks to raise an argument that it was an error of law for the judge to direct the jury that a girl under 16 could not give her consent. We are not sure how this point arises since the judge said no more than "age would be a factor in relation to consent". 
25.	Thirdly, the appellant raises the issue as to whether there was a proper direction as to the possibility that he might not have realised that the J was not consenting. In our view the summing-up on this point covered the issue properly. It was of course the appellant’s case that no sexual intercourse had occurred.
26.	Fourthly, the appellant argues that the introduction of J’s video evidence was impermissible under the Criminal Justice Act 1988. There is nothing in this point. This evidence was properly admitted under the provisions of the Youth Justice and Criminal Evidence Act 1999.
27.	Fifthly, the appellant seeks to raise an argument based on the judge’s refusal to stay the prosecution as an abuse. We have considered the judge’s ruling on this point (made on 9th June).  He rejected the application on the basis that, since the basis of the application related to the absence of defence exhibits, it was unlikely that the prosecution were under a duty to retain them and that, in any event, there was no prejudice or unfairness created by the absence of the exhibits.  This ruling does not give rise to any arguable grounds of appeal.
28.	Sixthly, the appellant complains that his counsel did not explore with Lorna that she did not live at a particular address at the time the offences were said to have taken place at her house. In the absence of a waiver of privilege on this point, we are not satisfied that this gives rise to an arguable ground that the trial was unfair. 
29.	Seventhly, there is a broad criticism that the judge was unfair to the appellant in his summary of the evidence. We do not accept that this is an arguable criticism of the judge. He had given the standard direction that the facts were for the Jury and correctly identified the nature of the defence, which included a reference to the difficulty which the appellant faced in dealing with allegations which were not precisely dated.
30.	Eighthly, the appellant submits that there was no sufficient evidence upon which the jury could properly convict him of particular counts which he has identified. Despite the detailed points which the appellant makes, we do not consider that this broad way of looking at the case adds anything to the arguments which we have already addressed and address below. 
31.	The rest of the matters of complaint we can deal with more shortly: there was no misdirection in relation to the need for unanimity; questions which might have been put to J in the course of cross-examination do not give rise to arguable grounds; there was no requirement for a Lucas direction and the judge’s guidance to the jury on how they might approach the appellant’s evidence does not properly give rise to criticism; and there was no unfairness in the jury seeing an indictment in which one of the counts was not proceeded with.
Conclusion in relation to conviction.
32.	We therefore conclude that there is no substance in any of the grounds of appeal against conviction which have been drawn to our attention, and the appeal against conviction is therefore dismissed.
Sentence.
33.	As Mr Barlow submitted, the appellant is a man who prior to these events had no previous convictions, but the offences of which he was convicted were grave, and the sentence passed upon him had to reflect the aggravating circumstances of the case.  It is not even contended that the sentence falls outside the range provided for in the guideline cases relevant to offences of this kind, and the renewed application for leave to appeal against sentence is therefore dismissed.