R v Jobe

 

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JUDICIARY OF TRINIDAD AND TOBAGO

HALL OF JUSTICE KNOX STREET

PORT OF SPAIN, TTO

 

Terms: (hostile witness)

 

Source: All Subscribed Cases Sources

Project ID: None

 

All England Reporter/2004/December/R v Jobe – [2004] All ER (D) 163 (Dec)

 

[2004] All ER (D) 163 (Dec)

 

R v Jobe

 

[2004] EWCA Crim 3155

 

Court of Appeal, Criminal Division

 

Potter LJ, Tugendhat J and the Recorder of Manchester

 

10 December 2004

 

Criminal evidence and procedure – Stay of proceedings for abuse of process – Defendant informed of decision that matter not to be prosecuted – Correctness of decision not to stay proceedings.

 

Criminal evidence and procedure – Evidence – Sufficiency of evidence – Decision to leave case to jury on count on which defendant acquitted – Effect on safety of conviction on other count on which defendant convicted.

 

Criminal evidence and procedure – Witness – Hostile witness – Correctness of judgment granting leave to treat witness as hostile.

 

The defendant was tried on an indictment alleging two counts of rape, in respect of two complainants.  The substance of the allegations was that the defendant had met the complainants in the same nightclub, he had taken them to his flat and given them a drink, and that each of the complainants’ next recollection was waking up while he was having sexual intercourse with her.  The defendant’s case was consent.  The first count related to an allegation that had occurred more than a year before the second allegation reflected in the second count.  The first complainant had first made a complaint to the police a few weeks after the first incident.  However, she had then declined to pursue her complaint and the defendant had been informed that there would be no prosecution.  It was not until the police had contacted her following the complaint by the second complainant that a second statement was taken from her.  In relation to the second count, the owner of the night club had given evidence for the Crown and his account was consistent with his account in his witness statements, namely that no reference was made as to any sexual comment made by the second complainant concerning the defendant.  However, in cross-examination, he stated that such a comment had been made and, thereafter, the Crown was permitted to treat him as a hostile witness.  At the close of the Crown’s case, the judge ruled that notwithstanding submissions that the account given by the first complainant was demonstrably untruthful, there was a case to go before the jury, but that a Makanjuola direction would be given as to a special need for caution when approaching her evidence.  In due course, the defendant was acquitted on the first count and convicted on the second count.

 

Issues arose on an appeal against conviction, concerning, inter alia: (i) whether the judge had properly refused to stay the prosecution in relation to the first complainant, having regard to the clear decision communicated to the defendant that there would be no prosecution in her case, and the clear prejudice that had followed; (ii) notwithstanding that the defendant had been acquitted on the first count, whether there was a lurking doubt that the jury had been influenced in their verdict on count two by what they had heard in relation to count one, such that the judge should have acceded to the submission at the close of the Crown’s case not to leave the count one to the jury and thus to discharge the jury on count two; and (iii) whether the judge had properly allowed the Crown to treat the night club owner as a hostile witness.

 

The appeal would be dismissed.

 

(1)  There was no reason to fault the judge’s exercise of discretion not to stay the prosecution as an abuse of process.  

 

There had been a full explanation before the court as to why the first complaint had not been proceeded with at the time it had first been made, namely the unwillingness of the first complainant to proceed at that time and an absence of details as to the circumstances of the alleged rape.  Further, there had been no suggestion of bad faith or manipulation by the police and it had not been asserted that the delay in reviving the complaint was excessive.  It had been reasonable for the police not to have proceeded at that time and it had been equally reasonable for the matter to be reinvestigated when a later complaint was received similar in all essential details.  Furthermore, in all the circumstances, there had been no substantial prejudice arising from the earlier decision not to prosecute.  

 

R v Latif [1996] 1 All ER 353 considered.  R v Bloomfield [1997] 1 Cr App Rep 135 distinguished.

 

(2)  It was not demonstrable that the judge had erred in the exercise of his discretion to leave the case to the jury.  

 

Decisions of that kind were essentially matters for the trial judge who had had the opportunity to assess the progress of the case and the manner in which a witness had been shown to be untruthful.  In the instant case, the judge had considered the matter with counsel before concluding that a Makanjuola direction would be appropriate and he had also directed the jury in clear terms that the allegations in respect of each count provided no proof or support for the allegations for the other.  

 

R v Makanjuola [1995] 3 All ER 730 considered.

 

(3)  Hostility by a witness might be demonstrated by the witness’s manner and demeanour alone, but it might also be demonstrated by inconsistency between the witness’s evidence and a prior statement, without it being necessary for that inconsistency to take the form of a flat contradiction.  Further, where a witness had omitted to say something in an earlier witness statement, such an omission was capable of founding an inconsistency.  

 

In the instant case, the demeanour of the night club owner had not been a relevant consideration, but his evidence about the sexual remark made by the second complainant had been.  In his witness statements, he had clearly stated that the second complainant had been quiet in the defendant’s company, and saying in cross-examination that the second complainant had been flirtatious with the defendant and had made the sexual remark had rendered him liable to be treated as a hostile witness.  

 

Michael Chambers QC (assigned by the Registrar of Criminal Appeals) for the defendant.

 

Christopher Vosper QC (instructed by the Crown Prosecution Service) for the Crown.

 

Stephen Leake   Barrister.

 

Judgment

 

[2004] EWCA Crim 3155

 

COURT OF APPEAL, CRIMINAL DIVISION

 

10 DECEMBER 2004

 

LORD JUSTICE POTTER, MR JUSTICE TUGENDHAT and THE RECORDER OF MANCHESTER (SITTING AS A HIGH COURT JUDGE IN THE COURT OF APPEAL CRIMINAL DIVISION)

 

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

 

LORD JUSTICE POTTER :

 

Introduction

 

1. On 7 November 2003 in the Crown Court at Swansea before His Honour Judge Michael Burr and a jury the appellant was convicted upon Count 2 of an indictment containing two counts of rape. He was acquitted on Count 1. He was sentenced to 8 years’ imprisonment. He now appeals against conviction and sentence by leave of the single judge.

 

2. A short outline of the prosecution case is as follows.

 

3. Count 1: A, (aged 18) complained to the police on 13 March 2002 that on a Sunday towards the end of February 2002 she had been abandoned by her friends at the Jumpin Jacks night club in Swansea where a man to whom she had been introduced on a previous occasion offered her a lift home. He provided her with a soft drink. She remembered having another drink at a flat where the man talked about himself, her next recollection being that of waking in her sleep in bed to find the man having sexual intercourse with her from behind. She remembered wanting to go home, being directed to a car and then waking up in her own bed next day feeling as if she had been drinking. She told a friend she thought that she might have been raped but had no memory of events. She found out a few weeks later that she was pregnant. At that stage she declined to pursue her complaint. Police spoke to the appellant and, following A’s decision that she did not wish to proceed, informed him that there would be no prosecution. He was warned as to his future conduct.

 

4. Count 2: C (aged 18) was in Jumpin Jacks nightclub on 23 April 2003 at about 1.00am. She went to a food outlet where she saw the appellant. She had met him some 7 months before, having been to his flat for a drink and he had taken her home when she asked him to do so. On 23 April she asked for a lift home and agreed to go to his flat first. She accepted the offer of a drink and, before she had finished it, felt sleepy. The appellant offered her his bed to sleep in and she accepted. Later she woke up and felt the appellant lying at her side having sexual intercourse with her. Afterwards, she complained and accepted a lift into town. Once out of the car she hid, then went straight to a police station and reported she had been raped. The appellant was arrested two hours later.

 

5. In relation to each count the prosecution alleged that the appellant had administered a drug to the complainant in her drink without her knowledge and then took advantage of her insensible condition to have sexual intercourse knowing that she did not consent. The defence denied that any drug was administered. The appellant claimed that, in both cases, kissing and cuddling was initiated by the girls and sexual intercourse took place with consent in each case, never being withdrawn. At the outset, the defence made a submission that the prosecution on Count 1 was an abuse of the process of the court. The judge’s rejection of that submission is the subject of the first ground of appeal. However, we turn first to the evidence and the subsequent course of the trial.

 

The Prosecution Evidence Count 1

 

6. A stated that she had not been drinking alcohol that night because she was on antibiotics. The appellant, whom she knew as ‘Al’ obtained a drink of coke for her. It tasted normal. At his flat he brought her another glass which she drank. Her next memory was waking in bed and realising that the appellant was having sexual intercourse with her. He called her a slag and demanded “Make me do it”. She was not willing but he slapped her back and his nails hurt her. She denied that she consented. She could not remember how her clothes were put back on or how the appellant knew the address to take her home to. Nor could she recall giving him her mobile telephone number. However she said she received two text messages from him afterwards, one of which said “Phone me if you need a top-up”. A few weeks later, on learning she was pregnant, she was confident that the appellant or ‘Al’ was the father because she said she had not slept with anyone else. She had not intended to press charges before the police approached her about a year later.

 

7. In cross-examination it was put to her that the appellant had her mobile telephone number and she his. She accepted this was so but said she had no idea how it happened. She denied having flirted with the appellant at Jumpin Jacks or that she fancied him. She had no recollection of getting into his car and would not accept that she did so willingly. She did not recall (although it was in fact the case) that she had told the officer when making her original complaint that she had gone freely to the appellant’s flat and had coffee. She denied that her complaint of rape was made in order to assist in obtaining a termination after she had found that she was pregnant. She said she had not wanted to pursue the complaint originally because she had not wanted her parents to know. She had been enabled to recall more details when approached by the police a year later because she had thought carefully about it, having received counselling. She said she had not been persuaded to pursue her complaint, but had done it of her own free will. She repeated that she had been a virgin at the time, as appeared in her original statement. She was questioned about what she had confided to friends and others after the event and rejected suggestions that she had ever said she had been pregnant before or that she had claimed to work as a stripper. She denied that the drink she had been given by the appellant at his flat was in a sealed bottle or that they had sex for half an hour with her consent or that they had watched television afterwards. She said she had never invited the appellant to call her again and she did not reply to his subsequent text messages.

 

8. DC Helen Jones was the officer who took a first statement from A on 13 March 2002, in which she said she had gone to the appellant’s flat freely and had a cup of coffee. She had been unable to recall details of the rape or location but was able to identify the property where the events had taken place. The officer had subsequently visited the appellant who said that everyone knew him by the name of Al. He agreed there had been sex but asserted it was consensual. The officer asked the appellant to erase A’s number from the memory of his mobile phone. She recalled that the appellant might have said something about having swapped numbers with A but did not recall seeing any text message from A. She denied, as suggested for the appellant, that she had told him she did not believe the complaint. A year later she had taken a subsequent and fuller statement from A.

 

9. A had had an ultrasound scan performed on 22 March 2002. (A put the rape incident at towards the end of February 2002.) An obstetrician stated that the results suggested that A was 6 weeks pregnant from the date of her last period on 5 February 2002 and considered that conception was unlikely from a single act of intercourse which took place as late as 19-21 days after A’s last cycle.

 

10. Brian Ridgway, a security guard who knew A from work, said he had gone out with her on a date in early March 2002 and had sexual intercourse with her. They had swapped mobile numbers and messages.

 

11. Finally, several witnesses were called who were acquainted with the appellant and saw him in the course of club life and who gave evidence to the fact that he introduced himself as Al Johnson, a former footballer associated with the Swansea football team as a ‘chat-up’ line to girls. One such stated that the appellant was popular with women and did not have to force himself on them.

 

Count 2

 

12. C said she was in Jumpin Jacks on the night of 23/24 April 2003, having consumed a number of vodka drinks. She was also taking anti-depressant medication. Having been given a lift by the appellant and gone to his flat, she was offered a drink, and requested vodka and coke. The appellant changed into shorts and they watched a music channel on television. After about three quarters of the drink (it might have been less) she felt dizzy and put it down to tiredness. She got into the appellant’s bed fully clothed, although he had offered her a teeshirt to sleep in. She went to sleep with the light on. She woke up and her jeans had been removed (she was not wearing knickers). The appellant was in bed with her, having sex from behind as she lay on her side. She protested and asked what he was on about. He told her she had taken her own jeans off and she denied that she had. She found them, got dressed and asked for a taxi which the appellant refused. He said he would take her wherever she wanted to go. In the car he banged his head on the steering wheel and said “What have I done?”. She got out of the car in Alexander Road, near to the police station. He got out of the car to follow her and she told him to get back in. He went back to the car and, as soon as it had departed, she went straight to the police station to complain that she had been raped. She had not told the appellant where she was going, or accused him of raping her either in the house or in the car. She said she was trying to stay calm and get to the police station as soon as she could.

 

13. In cross-examination she agreed that she liked clubbing and would drink a lot. She agreed she had twice been arrested for Public Order Act offences as a result of being drunk. She said that she had nothing to do with drugs. The toxicology report was put to her on the basis that blood and urine samples had revealed traces of Ecstasy, amphetamines and Valium which she denied taking, saying someone must have spiked her drink. She agreed that on the previous occasion when she had been to the appellant’s flat he had been well-behaved.

 

14. She agreed she had spoken to the appellant in the Diner after leaving the club and had asked for a burger but denied making reference to a ‘Punani’ burger, (Punani being the Jamaican slang for vagina.) She denied having had a great deal to drink or being drunk, or saying “Let’s go to a party”. She said she had asked for a lift home and expected to be taken there, but agreed she did not complain when they first went to the appellant’s flat. She denied that, at the appellant’s flat she had pulled her trousers down to demonstrate her firm bottom and denied that she had said “Come on, let’s go to bed”. She had gone to the bed because she was tired and wanted to sleep. She did not know whether the appellant had worn a condom. He certainly did not produce one and nor did she have one. She did not willingly have sex with him. He stopped when she woke up and realised what he was doing to her. She denied the suggestion that the appellant said he was going to the toilet but did not return and that she therefore turned against him and decided to make a complaint. She said that, on the basis of the previous occasion, she thought that she could trust him. She denied that he later said in the car “What’s wrong?” as opposed to “What have I done?”.

 

15. The civilian clerk, on duty at the police station at about 3.45am when C arrived, stated that C asked to speak in private but was only able to give her name because she was crying. Eventually she stated she had been raped and did not know what to do. The next officer to see her recorded her as saying “It was disgusting. I’ve been raped.” Her first account was recorded: she said she had been determined to stay calm. She took police to the address and the appellant was arrested. It was noticed she had no injuries. A record was also made that no condoms were used.

 

16. Hamed Sarver was the manager of the Diner and knew the appellant as Al. He remembered a girl asking the appellant what the cheeseburger was like. He said it was nice and asked Sarver to put one on for her. She went off with two male friends and 2-3 minutes later returned asking for her burger and claiming it had been paid for. She and the appellant had spoken for 3 or 4 minutes. She was quiet at that stage. Sarver had not seen her do anything to the appellant. He then left. After that she had started messing around and had jumped on the backs of two boys in the Diner. Sarver considered she was drunk. He said that just after 4.00am [i.e. a quarter of an hour after the appellant had dropped C near the police station] the appellant came back asking for help. He was shaken and said he was accused of rape. They discussed what happened and the appellant had told Sarver that C had been touching and holding on to him. He was anxious for Sarver to describe how C had been with him earlier.

 

17. When cross-examined, Sarver said in evidence that the claimant had been flirty and touching the appellant, had made a joke about a ‘Punani burger’ and, when the appellant was outside the Diner, had said she was going to get off with and ‘do’ or ‘fuck’ Al. He said that the appellant had told him he was worried about C’s mood having changed after they had had consensual sex. He wanted Sarver to tell the truth about what happened earlier.

 

18. In the light of this change in the thrust of Sarver’s evidence, to which we turn in more detail below, the Crown made application to treat him as a hostile witness, which application was granted. That ruling of the judge forms the third ground of appeal (see below).

 

19. So far as the forensic evidence was concerned, no residue was found in any glass recovered from the appellant’s flat. Samples of urine and blood were taken from C and from that calculation it was estimated that she would have shown signs of intoxication at 2.00am. Her urine revealed traces of Ecstasy, amphetamine and Prozac. Her blood showed evidence of Valium which could have been taken in one pill recently up to about 24 hours before. The Valium would have had a significant depressant effect with increased drowsiness and loss of co-ordination. The Ecstasy and amphetamine would have been taken between 24 and 48 hours before. Samples from the appellant’s penis and C’s vaginal swabs both contained silicone-based lubricant consistent with use of a condom. However, no condom was found. There was no trace of the appellant’s DNA on C’s trousers.

 

The Defence Case

 

20. The appellant, who was of previous good character, described his background and denied drugging or raping anyone. He said he used a different name for a number of reasons including a fear of deportation. He regarded himself as one of the boys and was involved with some of the Swansea football players. He accepted he said he was a player as a chat-up line but denied misusing it in order to gain advantage.

 

21. As to Count 1, he said he had seen A many times in Jumpin Jacks and she was flirty. He denied buying a drink for A in the club. He said he spoke to her outside and, when he said he was going home, she asked to go with him. At his flat, she said she had had too much to drink and he gave her a bottle of water. They started kissing on the settee and she was the one who suggested going to bed. After they had sex she said she needed a lift home. As he had never been there before he could only have found it if she told him where it was. They sat in the car for a few minutes outside where she lived and exchanged numbers before she got out of the car. She told him she was a part-time stripper and invited him to see her the following Saturday. However on that day she was busy. She sent him a text to say she was sorry she had missed his call. Later when the officer called to see him again she told him that she believed it was a fabricated allegation and, if he saw A again, he should run away. He denied that he had had sex with A from behind or dug his nails in her: it was just normal sex. He took the view that it was not her first time and thought it was possible that, having found out later that she was pregnant, it was easy to blame him as a stranger.

 

22. He called several witnesses on his behalf whose evidence went to Count 1.

 

23. A young woman who was a friend of A’s said that A made herself out among her friends to be a very different person from the virgin she told the police she was. She claimed to have slept with bouncers but wished to appear angelic at home. The witness recalled that, around Christmas time, she had been to Jumpin Jacks with A who pointed out someone there whom she referred to as ‘Al’.

 

24. A young man who had been A’s boyfriend for a short time up to January 2002 stated that they had had full sex together about five times. A young woman recalled going out with them in a foursome one evening when A went to the beach with her boyfriend, later making a reference to the size of his penis and the fact that they had had sex. She also said that A had said she was a part-time stripper and suggested that the witness took up an opportunity to become one herself.

 

25. A’s college tutor was also called. He gave evidence as to her behaviour with him to the effect that she positioned herself close to him in practical work until he had to ask her to move back and that she had told him she was a lap dancer. She had asked him for a lift to which he told her it was more than his job was worth. They were never in fact alone together.

 

26. As to Count 2 the appellant said he had met C previously in a different nightclub and that, on the night in question, it was she who approached him. She appeared drunk and, in the Diner she had grabbed his bottom and suggested he should buy her some food, making reference to a Punani burger which everyone thought was funny. She had wanted to go to a party but he said he was going home tired. She said she was going with him and referred to him as ‘uncle’. On the way to his flat they had stopped to buy cigarettes and petrol. At the flat he had offered her a drink and mixed it in her presence. She dropped her trousers and was not wearing any knickers and said “Let’s go to bed”. She had said she was not working till the following afternoon so he said she could stay. He had not previously thought about sex. He poured the remainder of the drinks away and filled them with water. In the bedroom she was half naked on top of the duvet and grabbed at him between his legs, giving him a condom and they had sex together. After a minute or so she asked him to go behind her. He stopped because he felt dead and said he had to go to the toilet. He had taken himself to the living room and questioned what he was doing because he was in a relationship with someone else at the time. On return to the bedroom he found her standing on the bed getting dressed and her attitude had changed. He offered to take her where she wanted to go.

 

27. He said he had later spoken to Hamed Sarver who had told him that the girl had indicated that she was going to ‘do’ him. The appellant had asked Sarver whether he remembered the reference to the Punani burger and Sarver had agreed that he did and that the girl was jumping around. The appellant said there was no truth in C’s allegations. He had not raped her.

 

28. In cross-examination, he was questioned about differences between his account and that given to the police when interviewed. He said he had been trying to give an account to the police of what had been going on. It was his first time in a police station and if his recollection was not quite right it was the result of confusion and concern. He had not been thinking straight. He had not been to see Sarver in order to help concoct a story. He thought it was possible C had made the allegations because he stopped in the middle of intercourse and it might have given rise to a change of attitude towards him.

 

Submissions

 

(1) Abuse of Process

 

29. It was submitted by the defence in respect of Count 1 that it would be an abuse of process to permit the prosecution to proceed in the light of the clear decision communicated to the defendant, shortly after the initial complaint by C, that there would be no prosecution in her case, and in the light of the fact (though this was submitted not to be necessary) that clear prejudice had followed.

 

30. It was not in issue before the judge that the two matters with which the court should concern itself were summarised in the two strands identified in the leading authorities, namely those cases where the defendant could not receive a fair trial and those cases where it would be unfair for the defendant to be tried at all. As to the first type of case it is necessary to show prejudice in the form of disadvantage to the defendant which cannot be cured in the course of the trial. In the second case, such as arises where the prosecution renege on an undertaking agreement or promise not to prosecute, it is not necessary to show prejudice where to proceed would bring the administration of justice into disrepute.

 

31. The judge dealt with those strands in reverse order. He first of all dealt with the conduct of the police in deciding to reopen the matter after the original indication given to the appellant that the matter would not be pursued. He referred to the evidence given by DC Helen Jones to the effect that she had made a note in her pocket book and had kept a statement made by A as a complainant on 13 March 2002 in a file of her own. The judge stated as follows:

 

1. “What therefore are my conclusions to the arguments and the limited evidence I heard from Detective Constable Jones? Well first of all the police did take the report they received on the 13th March seriously and they did their best, it seems to me, to explain matters to the complainant, and later on to her family. The substance of the complaint and the background details were recorded and are now available for cross-examination. There were no details given of the rape itself. That is something the complainant can be asked to explain in the light of her recent statement which deals with her recovered memory.

 

1. It is clear to me that the police would, if they could, have pursued matters to a prosecution, and their visit to warn the defendant never to contact the complainant, whilst confirming the absence of a complaint, in no sense approaches the sort of case where the prosecution abandon a prosecution because of evidential problems or co-operation from a defendant amounting to a promise, spoken or unspoken, not to proceed. This is a case where the police were frustrated in their concern to advance matters and there was on the evidence I heard no hint or suggestion that they did not believe the complainant. There is here no bad faith and no manipulation by the police. When the complaint was made a year later by … [C] …, it seems to be entirely reasonable that the police should seek to reopen what they perceived to be a very similar case in all essential details. It remains to be seen, of course, if the evidence on each count supports the account given on the other counts and that is an assessment that will have to be made before the case concludes in the summing-up. There is a very short time lapse between Counts 1 and 2 and, as I have mentioned, delay is not, in any event, relied on by Mr Chambers [for the defendant].”

 

32. So far as prejudice in the form of unfairness at the trial was concerned, the judge said this:

 

1. “Secondly, I do not accept that the defendant is prejudiced, as he claims to be, and I have already dealt with the statement of the 13th March. The officer and the complainant are both available for cross-examination within the normal trial process. The absence of DNA and blood tests is of no great significance, for the reasons advanced by Mr Vosper. The prosecution, to my knowledge, expressed the view from an early stage that the DNA evidence was not something on which they pinned any great hopes or expressed any particular interest.

 

1. I conclude that there can be and will be a fair trial on Count 1 and there are no circumstances rendering it unfair to the defendant to be tried on that count.”

 

(2) Hostile Witness

 

33. As already mentioned, in the course of the trial there was an application by the Crown to treat Hamed Sarver as hostile on the basis of his “startling omission” to make reference on either of the occasions when he saw the police to C’s alleged remark to the effect that she was going to ‘do’ or ‘fuck’ Al. The judge said that the application arose in unusual circumstances, but that, given that Sarver was an acquaintance of the appellant the omission appeared to relate to a fundamental point of startling importance. He ruled that the Crown should be permitted to make enquiry of the witness in the form of cross-examination directed to the issue of why he had not mentioned it before.

 

(3) No Case

 

34. Finally, when the evidence was complete and the judge invited submissions from counsel upon various of the directions appropriate to be given in the case, it was submitted for the appellant that Count 1 should be withdrawn from the jury on the basis that the prosecution had conceded that A was not a witness of truth, alternatively were in no position to hold her out as such in the light of the evidence of other witnesses for the prosecution. It was plain that A had presented herself as a virgin prior to her complaint and that the prosecution relied on the implication that it made her complaint the more credible, she not being the sort of person who would have consented to sex on a one night stand. However, three witnesses had given unchallenged evidence to the effect that that was untrue which went to her credibility in relation to the issue of consent in a most fundamental way. The judge rejected that submission, being of the opinion that, provided a strong Makanjuola direction was given (see [1995] 2 Crim App R 469) there was evidence which the jury might properly consider. It remained a matter for them to conclude whether A was right about the events she described, ignoring her other claims. This ruling is the subject of the second ground of appeal.

 

35. There is also a fourth ground of appeal, which constitutes the sole complaint in respect of what was a careful, full and fair summing-up. It is that the judge failed to warn the jury to exercise caution before acting on the evidence of C in relation to Count 2 in the light of the fact that she must have taken drugs herself or had drugs administered to her by another. This ground is linked to an application to adduce to this court fresh evidence arising out of matters reported in an article in a local paper concerning C’s plea of guilty to an offence of threatening behaviour contrary to s.5 of the Public Order Act 1986, in respect of which mitigation was advanced on her behalf that her drinks may have been spiked.

 

Abuse of Process (Ground 1)

 

36. We feel unable to fault the exercise of the judge’s discretion in this case. As to the question of whether it is fair that an appellant should be tried at all, the position is that stated in Latif [1996] 2 Crim App R 92 at 101:

 

1. “The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R v Horseferry Road Magistrates Court, ex parte Bennett (1994) 98 Crim App R 114, [1994] 1 AC 42 … the speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful.”

 

37. The remarks in Latif were made in the very different context of a case where the appellant had been lured to this country for the purposes of prosecution. However, they make clear the nature of the discretion and that its touchstone is the public interest in the integrity and proper operation of the criminal justice system and the need to avoid any affront to the public conscience in this respect. As stated in DPP v Hussain, The Times, 1 June 1994, an abuse of process is “Something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a fair proceeding”. That was of course the basis upon which the leading authority of Bloomfield (1997) 1 Crim App R 135 was decided. However the facts in Bloomfield were very different. The prosecution had made a statement in open court and in the presence of the judge that no evidence was to be offered against the appellant prior to the adjournment of the case against him. Thereafter there was a change of prosecution counsel and, without any explanation for the change of heart, the matter was resurrected, the trial judge having refused to stay the proceedings as an abuse of process. Even on appeal, no explanation was provided for the change of heart by the prosecution, nor any attempt made to show that the original decision not to proceed was wrong. The court was simply told that it was an unauthorised decision. The court made clear that:

 

1. “… the circumstances of each case have to be looked at carefully and many other factors considered. As the court said in the Mahdi decision, we are not seeking to establish any precedent or any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case an injustice was done to this appellant.”

 

38. In this case there is no real analogy with the case in Bloomfield. There was a full explanation before the court as to why the complaint had not been proceeded with at the time it was first made, namely the unwillingness of A to proceed at the time and an absence of detail as to the circumstances of the rape. There was no suggestion of bad faith or manipulation by the police, nor was it asserted that the delay in reviving the complaint was excessive. Whereas it was plainly reasonable for the police not to proceed at that time, equally, as it seems to us, it was reasonable for them to reinvestigate the matter when they received a later complaint similar in all essential details. Looked at from the point of view of public confidence in the administration of justice, far from its being a situation where it was inappropriate for the police to revisit the complaint of A, in our view it would have been wrong of them not to do so. Having done so, and found a complainant now able to remember much more detail of the incident as a result of counselling and whose recalled experience appeared to be similar to that of C, we do not think that the bona fide decision to prosecute can be criticised. In the absence of substantial prejudice, we do not consider that any abuse of process can be demonstrated.

 

39. Nor do we think that substantial prejudice has been demonstrated.

 

40. Mr Chambers submits that, by reason of the original decision not to pursue the complaint, there is prejudicial absence of contemporary documentation recording that complaint on 13 March 2002.

 

41. The officer concerned with the complaint was DC Helen Jones who was called to give evidence on a voire dire. She said that, when A came in and saw her at the police station on 13 March 2002, she asked her to tell her what happened. The account that A gave was brief because she was unable to remember many details. Asked if she had made any record, the officer said “I may have made some notes but from the start [A] told me that she did not want to make a complaint and so the details I was getting really was for the statement of withdrawal …”. The officer said that she had not retained her notes but that, following a visit to the address of the defendant that afternoon, she took a statement from A. That statement, written in the hand of the officer and signed by A stated that the rape had occurred on the last Sunday of February 2002 at the home of the appellant and that A had discovered she was now pregnant. It went on:

 

1. “I cannot recall any details of the rape – I can only assume that he spiked my drink of coke. I do not wish to pursue this matter with police and only reported the incident in order so they tell him to stop phoning me. He is contacting me in order to meet up again and I do not wish any further contact.”

 

42. A also stated that she would not support the police in a prosecution or attend court to give evidence in the matter.

 

43. The officer produced a notebook which gave short references to contacts with A and her family on 26 March 2002 with a reference to a visit to A at 7pm that day when she and her family were ‘suitably advised’. The notebook showed a later visit on 20 April 2002 to the appellant concerning the complaint which entry read:

 

1. “Re allegation made by [A] … Denial. Consented to intercourse. Allegation put to him re drugging her drink – total denial. Informed of no complaint – would stay away from [A].”

 

44. In these circumstances, the complaint of the appellant in relation to the absence of a contemporaneous note is the complaint of a lost chance that any account recorded by DC Jones as her own note made before the withdrawal statement of 13 March 2002 might have differed from A’s witness statement dated 25 April 2003 and/or her evidence, in which she gave substantially more detail of the rape which she now claimed to recall. We do not see any realistic room for this suggestion. A’s first account was essentially a negative one, stating that she had little recollection of what occurred. This was set out in her withdrawal statement. The further detail given in her statement of 25 April 2003 was stated to be made as a result of recovery of her memory through counselling. The defence requested that references to counselling should not be opened to the jury and that was agreed by the prosecution. In so far as she may have given a different account on other occasions, there was material available to the appellant in the form of statements of a number of friends. The judge was fully entitled to conclude that there was no real or substantial prejudice in the presentation of the appellant’s defence arising from the absence of contemporary notes on the part of DC Jones.

 

45. The second point taken is that, having been told that the complaint would not be pursued on 20 April 2002, the appellant was effectively told that he would not be prosecuted and thus deprived of the opportunity to make contemporaneous enquiries to assist in his defence by seeking to call witnesses at the club as to A’s demeanour and behaviour. Again, viewed realistically, we consider that the judge was entitled to take account (a) of the unlikelihood of any reliable or useful evidence on that score being obtained from witnesses asked to cast their minds back some two months to an evening of which they might be expected to recall little or nothing which distinguished it from any other; (b) of the unlikelihood of such evidence assisting the appellant’s case. It was no part of his case in relation to A that she had been behaving in a way which was likely to attract attention. He spoke of having seen her on many occasions before at Jumpin Jacks but stated that, on the evening in question, she had simply come up to him and asked for a lift home. Again, the judge was justified in finding absence of any substantial prejudice in this respect.

 

46. Mr Chambers also submits that, had the appellant been informed on 20 April 2002 that he was or might be prosecuted, rather than that the complaint was not being pursued, he would have retained his mobile phone which contained a record of calls and text messages passing between him and A. Instead, he erased the telephone number of the complainant and the text message which she had subsequently sent him, having been requested by DC Helen Jones to do so. Upon the voire dire, the officer accepted that she instructed the defendant to delete A’s telephone number from his mobile phone and that he did so in her presence. She did not recollect his producing a text message, though she accepted the possibility that he might have done. The short answer, however, to Mr Chambers’ complaint that the judge does not appear to have taken this into account is that (as is apparent from the Schedule/Skeleton Argument of defence points on admissibility at trial) the point was not taken before the judge.

 

47. Even had it been taken, however, there was no dispute that numbers had been exchanged at some point and that the appellant had texted A himself. He was in a position to give evidence concerning the text message he said he had received and he did so. We do not find substantial prejudice in this respect.

 

48. Finally, it is argued that, had the appellant been aware that the complaint was being proceeded with, effective DNA tests could have been carried out to establish the paternity of the foetus when the pregnancy of the appellant was terminated, whereas attempts which were made over 12 months later failed. There was of course no issue that sexual intercourse had taken place, as the appellant admitted. If DNA tests had shown him to be the father it would have added nothing to his case. If they had shown that he was not the father, it is plain that the course that the trial would have taken would have been for the defence to make an application to cross-examine A about her sexual history in precisely the same terms as that which was made in any event. The Crown indicated that if the application was successful then the witness Brian Ridgeway would be tendered, as indeed he was, so that the point sought to be proved, namely that A was not a virgin as she had indicated and was sexually active at around that time, was before the jury in any event.

 

No Case (Ground 2)

 

49. So far as ground 3 is concerned, it is argued that, when the evidence was complete, the judge should have acceded to the submission for the appellant that the case should not be left to the jury on Count 1 because A had been demonstrated beyond question to be untruthful on a material issue, namely whether or not she was a virgin at the time of the alleged rape. At that stage there had been added to the evidence of the prosecution witness Brian Ridgeway and the consultant obstetrician, evidence from a number of girls who had been close college friends of the complainant and a former boyfriend who stated that she had had sexual intercourse with other men prior to 24 February 2002. In their final address to the jury the prosecution had conceded that they could point to no motive as to why the former boyfriend, a serving soldier, should lie and that the jury would probably conclude that the complainant was untruthful on this aspect. It was also clear that, apart from the complainant’s evidence, there was no other supporting evidence on Count 1. In these circumstances, it is submitted that the judge’s decision to leave the matter to the jury on the basis of a Makanjuola direction was in error; the judge should have concluded that no reasonable jury properly directed could safely convict. Had he done so and withdrawn the case from the jury on Count 1, an application to discharge the jury on Count 2 would inevitably have been successful.

 

50. Having carefully considered the question, we do not think it demonstrable that the judge erred in the exercise of his discretion. Decisions of this kind are essentially matters for the trial judge who has had the opportunity to assess the progress of the case and the manner in which a witness shown to have been untruthful on some particular aspect of his or her evidence has given evidence overall, including the nature of the matter upon which it appears the witness has lied and any reasons why a jury might infer he or she had done so without regarding it as fatal to the essential issue relative to guilt. Summarising the position following the abrogation of the requirement to give a corroboration direction in relation to the evidence of a complainant of a sexual offence, Lord Taylor CJ said this in Makanjuola at 473:

 

1. “(4) If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.

 

1. (5) Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge’s review of the evidence and his comments as to how the judge should evaluate it rather than as a set-piece of legal direction.

 

1. (6) Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroboration rules.

 

1. (7) …

 

1. (8) Finally, this court will be disinclined to interfere with the trial judge’s exercise of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense.”

 

51. The judge did carefully consider the matter with counsel in lengthy discussions and submissions before concluding that a Makanjuola direction would be appropriate. In summing up, he warned the jury of the special need for caution in relation to A’s evidence and why it was that she had delayed reporting the matter to the police from 24 February to 13 March, the same day she discovered she was pregnant. He reminded them of her claim to be a virgin without sexual experience and the evidence to the contrary. In that respect he observed:

 

1. “You will not overlook, of course, and you are entitled to consider why for reasons of personal embarrassment, or even parental approval, somebody might lie or exaggerate on a subject as sensitive as that … “

 

52. He concluded his review with the following direction:

 

1. “It is all a matter for you, but if you were to conclude that she was lying about being a virgin, without sexual experience, then it would be wise for you to look for some supporting material before acting on her evidence and in relation to that I have to tell you that there is no such supporting evidence and you would be searching in vain for it. You would, however, still be in a position to consider any evidence of [A] about which you are sure she was telling you the truth, but you would hesitate long and hard before convicting in reliance on the unsupported evidence of somebody whose evidence you have rejected on a central issue.”

 

53. He then proceeded to deal with the evidence on Count 2:

 

1. “… separating them, as I do, for the reasons I explained earlier and the importance for you, too, of separating totally your consideration of the various Counts.”

 

54. Mr Chambers has urged upon us that, even if it be the case that the judge was entitled to deal with the matter as he did, we should take the view, if only on a ‘lurking doubt’ basis, that it is likely that the jury, despite acquitting the appellant on Count 1, may nonetheless have been influenced in their verdict on Count 2 by what they had heard.

 

55. We do not feel able to take that view. The judge’s was a full and careful summing-up in relation to which no complaint is raised. He began his summing-up by directing the jury in clear terms that the allegations in support of Count 1 provided no proof or support for the allegations in Count 2 and vice versa. He went on to say:

 

1. “If you do find him guilty on one count that does not assist you in proving guilt on the other count, which must be approached, as I have said already, entirely separately on an independent assessment of the evidence relating to that count.”

 

It was also the last matter of which he reminded the jury before the completion of his summing-up by reference to the importance of a unanimous verdict.

 

56. Accordingly, we reject ground 2 of the grounds of appeal.

 

Hostile Witness (Ground 3)

 

57. The appellant submits that the judge erred in permitting the Crown to examine Homed Sarver as a hostile witness, and was wrong to allow prosecuting Counsel to comment in his closing speech that he must have colluded with the appellant. The question of Mr Sarver’s being treated as a hostile witness developed in the following way.

 

58. When C was cross-examined at the trial, it was suggested to her that, after the appellant had left the Diner at 2am, she had told Mr Sarver that she was going to “do” or “fuck” the appellant. She denied it. She also denied having referred to a ‘Punani’ burger, and said that she did not know what a Punani burger was. When Mr Sarver was called, his evidence in chief was broadly consistent with his two witness statements, save that there was no mention of C’s reference in the Diner to a Punani burger. When he was cross-examined by Mr Chambers, Q.C. on behalf of the appellant, he said (as he had said in one of his witness statements) that when the appellant had returned to the Diner at 4am, he had said that C had already gone to the police station to complain of rape. To that extent, his evidence assisted the prosecution. However, other aspects of his evidence favoured the defence. For example, he agreed in further cross-examination that C had referred to a Punani burger in the Diner at about 2am. He added that at that time C had been flirty and had been touching the appellant. Moreover, he said that after the appellant had left the Diner she had told Mr Sarver that she was going to “do” or “fuck” the appellant. [We will refer to this in future as “C’s sexual remark”.]

 

59. Mr Sarver’s evidence of C’s sexual remark prompted an application by the Crown to treat him as hostile. It was conceded that there had been nothing hostile about his tone or demeanour, and he had (till then) given evidence broadly in accordance with his two witness statements. However, the Crown regarded his failure to refer to C’s sexual remark in either of his witness statements as a startling omission, and now sensed collusion. They contemplated three possibilities. The first was that C had made the remark, but that Mr Sarver had not told the appellant about it during their conversation at 4a.m. This would explain why the appellant had never mentioned the sexual comment in any of his interviews. It would not, however, explain why Mr Sarver had omitted to refer to the remark in either of his two witness statements. Neither would it explain how defence counsel had instructions, as he obviously had, to put the remark to C in cross-examination. The second possibility was that C had made the sexual remark, and that Mr Sarver had told the appellant about it during their conversation at 4a.m. That would explain how defence counsel had instructions to put the matter in cross-examination. It would not, however, explain why the appellant had not referred to the sexual remark in any of his interviews. Neither would it explain why Mr Sarver had not referred to it in either of his witness statements. The third possibility was that Mr Sarver and the appellant had colluded at some stage since their 4a.m. conversation to present a false account that C had made the sexual comment. That would explain everything.

 

60. The judge allowed the application, to the limited extent that Mr Vosper Q.C. would be permitted to explore with Mr Sarver why he had not mentioned C’s sexual comment in either of his witness statements. The judge regarded Mr Sarver as a witness who had become hostile solely on the basis of the ‘startling omission’ referred to above, and not on the basis of his demeanour. Mr Sarver was then cross-examined by Mr Vosper. He was unable to explain why he had not referred to C’s sexual comment in his witness statements, but he reiterated that C had made that remark. Mr Vosper asked “Is that really right?”; but he did not put specifically to Mr. Sarver that he had colluded with the appellant or was lying.

 

61. At the end of all the evidence, the judge and counsel discussed what comment could properly be made about these matters by Mr Vosper in his closing speech. The Judge ruled that he would not fetter either the prosecution or the defence as to how they put matters in their closing speeches. The judge observed that he had understood, and was sure that the jury had also understood, the purport of Mr Vosper’s cross-examination of Mr Sarver as a hostile witness; and that Mr Vosper had put the suggestion of collusion fairly and squarely to the appellant. Accordingly, when Mr Vosper addressed the jury, he asked them to consider the possibility that the appellant and Mr Sarver had colluded to present a false account.

 

62. In relation to the judge’s decision to allow Mr Sarver to be treated as a hostile witness, Mr Chambers makes two submissions. The first, quite simply, is that the decision was wrong. Mr Sarver should have been treated as hostile only if two conditions were met. The first was that there should have been an inconsistency between Mr Sarver’s evidence and his two prior witness statements. In fact, there was none. There had simply been an omission on Mr Sarver’s part to mention C’s sexual remark in either of his prior statements. There was a dearth of authority as to whether an omission could constitute an inconsistency for these purposes. Even if it could, the omission in this case did not constitute an inconsistency. Mr Sarver’s reference in evidence to C’s sexual remark was consistent with the general tenor of his two witness statements, referring as they did to C’s having approached the appellant, engaged him in conversation, messed around, jumped on the two boys’ backs, and mentioned a Punani burger.

 

63. The second condition was that Mr Sarver by his language or demeanour should have shown that he was hostile rather than merely unfavourable to the prosecution. This he had not done. His demeanour had been unexceptionable. He had given his evidence in an apparently straightforward manner. He had dealt with everything referred to in his earlier witness statements. He had given answers favourable both to the defence and to the prosecution. All of this had been accepted by the Crown when making their application to treat Mr Sarver as hostile, and by the judge when granting that application. Mr Chambers further submits that, even if the ground had been laid for treating Mr Sarver as a hostile witness, the judge still had a discretion in the matter. In this connection, it was relevant that the Crown had elected to call Mr Sarver knowing that he was an associate of the appellant and that he would in any event be giving some evidence favourable to him. The judge should therefore have exercised his discretion against the Crown.

 

64. In reply to Mr Chambers’ first submission, Mr Vosper submits that the law does not require both of the conditions advanced by Mr Chambers to be fulfilled before a witness can be treated as hostile. All that is required is that the witness should present as “not desirous of telling the truth to the Court at the instance of the party calling him”, this being the test formulated in Stephen’s Digest of the Law of Evidence and approved by this Court in R v. Prefas and Pryce 86 Cr. App. R. 111. When he unexpectedly gave evidence about C’s sexual remark, Mr Sarver met this requirement.

 

65. We accept Mr Vosper’s submission. The starting point is section 3 of the Criminal Procedure Act 1865 which provides as follows:

 

1. “A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such statement”

 

66. We have been referred to several authorities. These include Jackson v Thomason (1861) 31 L.J.Q.B 11; R v Manning [1968] Crim. L.R. 675; and R v Prefas & Pryce referred to above. We do not think it necessary to refer in any detail to the authorities cited to us. They demonstrate, as both Counsel agree, that the word “adverse” in section 3 means ‘hostile’ rather than merely ‘unfavourable’. In our judgement, such hostility may be demonstrated by the witness’s manner and demeanour alone. Thus a witness who declines to answer questions at all, or repeatedly says “I can’t remember” as in R v Manning may be treated as hostile even though, in the absence of any positive evidence from the witness, no question of inconsistency can have arisen. On the other hand, the hostility may be demonstrated by inconsistency between the witness’s evidence and a prior statement, as in R v Prefas and Pryce. The inconsistency need not take the form of a flat contradiction. As Blackburne J. said in Jackson v Thomason at p.13: “…the Judge must see whether the proposed evidence has a tendency to contradict or be inconsistent with the witness’s present statement”. (Our emphasis. See also the reference to this case in Archbold (2004) at para. 8-95).

 

67. In the present case, the demeanour of Mr Sarver was not a relevant consideration, but in our judgement his evidence about C’s sexual remark was. Though he had said in his two witness statements that C had approached the appellant, he had not referred to any sexual remarks or overtures (touching or flirting) directed by her towards him. On the contrary, Mr Sarver had clearly stated that C had been quiet when in the appellant’s company, and that he had not seen her doing anything to him. In our judgment, Mr Sarver’s evidence in cross-examination by Mr Chambers that C had been behaving in a flirtatious manner towards and had been touching the appellant was plainly inconsistent with his prior statements, and his further evidence about C’s sexual remark was similarly inconsistent and rendered him liable to be treated as hostile. It was evidence of critical importance. It was quite contrary to the general tenor of Mr Sarver’s witness statements. Mr Sarver had known in advance that the police might come to interview him in connection with an allegation that the appellant had raped C. The jury were entitled to consider whether or not Mr Sarver might have been expected to mention C’s sexual remark to the police, at least on one of the two occasions on which they interviewed him in that connection.

 

68. We have approached this issue on the basis that there was positive inconsistency between Mr Sarver’s evidence and his earlier statements. Had the correct analysis been that there was merely an omission on Mr Sarver’s part, we would nonetheless consider that, in appropriate circumstances, an omission is capable of constituting an inconsistency, and this is such a case. Mr Chambers submits that the dearth of authority on the point suggests omissions are not capable of founding inconsistencies. In our judgement, it rather suggests that it is generally assumed that omissions are capable of founding inconsistencies. Everyday practice in the Crown Court certainly supports that conclusion. It is, for example, a common occurrence for a prosecution witness to say something in evidence which he or she has not mentioned in a prior witness statement; for defence counsel then to cross-examine the witness on what is referred to as the inconsistency; and for the judge, when summing up, to direct the jury as to how they should approach the ‘previous inconsistent statement’.

 

69. We deal next with the point made by Mr Chambers that it was the Crown’s decision to call a witness known to be an associate of the appellant and to be likely to give some evidence favourable to him. Mr Vosper explained to us, and we accept, that the prosecution called Mr Sarver for a variety of reasons. In some respects, his evidence was expected to be favourable to the prosecution. He was expected to contradict the appellant’s account that C was still in his car when he returned to the Diner at 4a.m. He was expected to confirm that as early as 4a.m. the appellant had been concerned about the possibility of being accused of rape. It was also thought proper to call Mr Sarver to assist the jury to determine C’s state of intoxication, which was in issue. We were referred to R v Cairns and Others [2003] 1 Crim. App. R. 662 in which this Court upheld the right of the prosecution to call a witness on only part of whose evidence they relied, if this promoted the interests of justice. We accept that when the prosecution called Mr Sarver they were quite unaware of any risk that he might say that C had behaved flirtatiously towards the appellant and had made the sexual remark. In our judgement, therefore, the very fact that the prosecution decided to call Mr Sarver was not a material factor when deciding whether or not he should be treated as hostile.

 

70. We turn to consider the second submission made by Mr Chambers. This is that if, contrary to his first submission, the judge was right to allow Mr Sarver to be treated as hostile, the judge should not have allowed Mr Vosper in his closing speech to invite the jury to consider whether Mr Sarver’s reference to C’s sexual remark might have been the result of collusion between him and the appellant. Mr Chambers submits that this may have had two consequences. First, it may have neutralised a piece of evidence highly favourable to the defence case. Secondly, it may have undermined the appellant’s credibility in the eyes of the jury.

 

71. To this second submission Mr Vosper replies, (as the judge also observed) that, when Mr Vosper was cross-examining Mr Sarver as a hostile witness, everyone in court appreciated that Mr Vosper was suggesting the possibility of collusion between Mr Sarver and the appellant, even though collusion was not put directly. Mr Vosper told us that he did not put it directly for two reasons. The first was that he regarded himself as limited by the terms of the judge’s ruling that Mr Sarver could be treated as hostile. The second was that Mr Vosper elicited from Mr Sarver that he had not told the appellant about C’s sexual remark when they met at 4a.m. and that the two of them had not communicated since. This was sufficient for Mr Vosper’s purposes at that time, though he was not, of course, to know that Mr Sarver would, when further cross-examined by Mr Chambers, say that he may have told the appellant about the sexual remark. Moreover, as Mr Vosper points out, the Judge did not impose any fetters on his cross-examination of the appellant, to whom he put the suggestion of collusion directly, as he was entitled to do. In these circumstances, submits Mr Vosper, the Judge was right to allow him in his closing speech to ask the jury to consider the possibility of collusion.

 

72. We accept Mr Vosper’s submissions on this point also. We have been referred to R v Lovelock [1997] Crim. L.R. 821, in which this Court, on the facts of that case, upheld the right of prosecuting counsel to adopt a “raised eyebrow” approach to the evidence of a witness, without explicitly challenging it, and then to invite the jury to reject it as incapable of belief. Mr Chambers has referred us also to R v Pacey The Times, 3rd March 1994. There, however, prosecuting counsel made comments, wrongly as this Court held, which were adverse to the prosecution’s sole witness who had not been treated as hostile. The circumstances of the present case were quite different. We find R v Lovelock a more helpful authority, and conclude that the manner in which Mr Vosper cross-examined Mr Sarver did not prevent him from addressing the jury as he did in his closing speech. In any event, he was entitled to suggest collusion to the appellant himself. He having done so, it would in our judgement have been artificial for the Judge to have fettered Mr Vosper’s closing speech. In the final analysis, it was a matter for the jury to decide what they made of the suggestion of collusion.

 

73. For these reasons, we reject the third ground of appeal. Warning re Drugs (Ground 4)

 

74. It is submitted in respect of Count 2 that the judge should have given a Makanjuola direction in respect of the evidence of C by reason of the fact that she denied taking Ecstasy and Amphetamine, traces of which were found in her urine samples taken at 8.00am on 24 April 2003. If she was lying about that, then she might equally have been capable of taking the Valium found in her blood sample. It was C’s evidence that she had not knowingly taken the drugs, but that since her regular work was in a pub after which she would go on to drink in clubs, it was possible that someone had spiked her drink. She accepted, when it was put to her, that either that was the case or that she was lying. However, the defence line was not to press one alternative over the other, but rather to assert that, whether C had lied or she was telling the truth, it was a point in support of the defence case.

 

75. As stated by Lord Taylor CJ in Makanjuola at 473:

 

1. “There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel.”

 

76. Here, the position was that counsel did not make a positive suggestion of lying, but rather put the matter as one of two alternatives, either of which was a support for the defence denial that the traces of drugs found were the result of any action on the part of the appellant. In those circumstances, we do not consider that it has been demonstrated that the judge erred in the exercise of his discretion by omitting to make a Makanjuola direction in respect of C’s evidence at large.

 

New Evidence

 

77. Finally, the appellant seeks to rely on new evidence relating to an incident involving C on Sunday 21 December 2003 (i.e. 8 months after the instant offence and 2 months after the appellant’s conviction) in respect of which she pleaded guilty to an offence of threatening behaviour, contrary to s.5 of the Public Order Act 1986 at the Swansea Magistrates’ Court at the end of January 2004.

 

78. In this respect it is sought to adduce the statement of PC Stokes, the arresting officer, who witnessed C drunk, smelling of drink and crying in the Accident and Emergency Department of Morriston Hospital. She proceeded to head-but a stone wall on three occasions and, according to the officer, was hysterically crying “I was raped and he got 8 months, they never flicking believed me”. She then became aggressive and abusive, swearing and generally causing a disturbance. She was accordingly arrested and charged.

 

79. The appellant also relies on a short newspaper report of the court proceedings at which mitigation was presented on behalf of the appellant. The relevant part reads as follows:

 

1. “[C] said she could remember nothing of events at Morriston Hospital Accident and Emergency Department on December 21.

 

1. She had been drinking with friends but consumed only about 2-and-a-half pints of lager, solicitor David Walters told the court. “She has assumed – although there is no concrete evidence for this – that something was put into her drinks,” he told the justices.”

 

80. Mr Chambers seeks to argue that, given the evidence of the officer that C was extremely drunk, her assertion (or rather her assumption) that her drinks had been ‘spiked’ appears to have been made without any evidential basis. He invites us to draw the inference that she was seeking to deceive the Magistrates’ Court into a finding that her drunken and aggressive state had not been self-induced. It is submitted that, had the jury been aware of these facts, they might well have inferred that, at her trial, C was falsely implying that her drinks had been spiked by the appellant in order to discourage the jury from finding that she had in fact been drunk and consented to sexual intercourse voluntarily in that state.

 

81. It is, of course, an essential step in the argument for the appellant that this court should be satisfied that C did not assume or believe, when giving instructions to her solicitor in January 2004 that her drink had been spiked on the occasion of the incident at the hospital. The court has no evidence as to her state of mind in that respect and is not prepared to make that assumption.

 

82. It is also apparent that her behaviour that night was, if not a product of certainly affected by, the instant offence. It appears that the officer may well have misheard what C was saying [the sentence upon the appellant was 8 years and it is plain that the jury believed C]; but, whether or not that is so, it is clear that the behaviour of C as attested by the officer was affected by the ordeal of her trial in October 2003. If, as may be the case, C would never have behaved as she did on 21 December 2003 if she had not been through the ordeal of her trial in October 2003 and if her assumption that her drink had been spiked may have been based upon her previous experience, then the ‘new’ evidence is of no probative value in respect of the earlier offence.

 

83. Simply assessing the evidence on the documents available, (and it has not been suggested that oral evidence is necessary or appropriate), they do not in our view justify an inference that C did not suspect when giving instructions to her solicitor that her drink had been spiked, whether based on her previous experience or not, let alone that she was lying at the appellant’s trial. It does not appear to us that the quality or substance of the ex post facto evidence before us is such that it affords any ground for allowing the appeal, or that it disturbs the safety of the conviction: see R v Pendleton [2001] UKHL 66, [2002] 1 Crim App R 34.

 

84. The appeal against conviction is therefore dismissed. Appeal against Sentence

 

85. In passing sentence, the judge imposed a term of 8 years’ imprisonment. It is not clear how he arrived at that figure. The term stated by guidelines to be the appropriate starting point for a single offence of rape on an adult victim where there is present none of the aggravating circumstances set out in Millberry [2003] 2 Cr App R(S) 142 is 5 years.

 

86. Here there was present one such aggravating circumstance, namely covert use of a drug to overcome the victim’s resistance: see Millberry at para 32(viii). No specific increment is suggested in Millberry as appropriate in such a case (c.f. the features identifying an 8-year starting point at para 20).

 

87. The judge stated that he took into account the previous good character of the appellant but pointed out that it did not avail defendants in rape cases as it might avail others. He also stated that there was a degree of ‘breach of trust’ on the basis of C’s statement that because of the previous visit to the appellant’s flat without incident she had trusted him.

 

88. Mr Chambers submits that the term imposed makes it clear that the judge must have increased the starting point by as much as 3 years for the use of drugs in this case. Mr Chambers says that is an excessive uplift in the circumstances of the case. The length of the term also makes clear that no account at all was taken of the appellant’s good character in order to mitigate the sentence imposed, unless it be that a notional credit was made and then ‘traded off’ by the judge against what he regarded as the further aggravating factor of a so-called breach of trust.

 

89. In that respect, Mr Chambers submits, and we agree, that there was here no breach of trust or special relationship in the sense used by this court in Millberry in which regard the court referred back to Billam (1986) 82 Crim App R 347. In Billam it was said to be a breach of trust where “the offender is a person in whom the victim has placed his or her trust by virtue of his office or employment (eg a clergyman, an emergency services patrolman, a taxi driver, or a police officer)”. The Sentencing Advisory Panel Guidance on Sentencing in Rape referred to in Millberry considered that the ‘breach of trust’ category should be extended to the broad situation where the victim has placed his or her trust in the offender by virtue of his office or employment, but no further. Again, that is not this case.

 

90. We accept Mr Chambers’ submissions and it appears to us that the sentence imposed was too high. Having regard to the absence of violence and the previous good character of the appellant, we quash the sentence of 8 years’ imprisonment and substitute a sentence of 5 years’ imprisonment.