Chedwyn Evans v R
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett |
| Judgment Date | 21 April 2016 |
| Neutral Citation | [2016] EWCA Crim 452 |
| Docket Number | Case No: 2015/04532/B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 April 2016 |
[2016] EWCA Crim 452
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASE REVIEW COMMISSION
UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995.
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Hon Lady Justice Hallett DBE,
Vice President of The Court of Appeal Criminal Division.
Mr Justice Flaux
and
Sir David Maddison
Case No: 2015/04532/B5
Mr Kieran Vaughan QC and Mr David Emanuel instructed for the Appellant
Ms Eleanor Laws QC and Mr John Philpotts for the Respondent
Hearing dates: Tuesday 22 nd March and Wednesday 23 rd March 2016
Judgment Approved
Lady Justice Hallett, Vice President of the Court of Appeal Criminal Division:
Background
The appellant was a professional footballer. On the night of 29 May 2011 he and his friend McDonald had sexual intercourse with a woman (whom we shall call X) in a hotel room. The next morning X woke alone and claimed she had no memory of what had happened. The appellant and McDonald were charged with rape on the basis X was incapable of consenting to intercourse. They stood trial in 2012 and on 20 April 2012, the jury convicted the appellant but acquitted McDonald. The appellant was sentenced to five years imprisonment which he has now served.
On 10 August 2012, the single Judge refused his application for leave to appeal conviction. On 6 November 2012, the Full Court refused his renewed application for leave to appeal conviction based on an alleged inconsistency in the verdicts, criticism of the summing up and fresh expert evidence on X's amnesia. The judgment is reported at [2012] EWCA Crim 2559.
He appeals against conviction upon a reference by the Criminal Cases Review Commission (the "CCRC") under s.9 Criminal Appeal Act 1995 on the basis that fresh evidence from Tristin Owens, Angela Owens and Steven Hughes undermines the safety of his conviction. The appellant seeks leave to admit the evidence of all three under s.23 of the Criminal Appeal Act 1968. The issues for us are whether the evidence is credible, whether there is a reasonable explanation for the failure to adduce it at trial and whether it would afford a ground of appeal. In this case it could only afford a ground of appeal if admissible under section 41 of the Youth Justice and Criminal Evidence Act 1999 (the " YJCEA").
A summary of the evidence called at trial is to be found in the judgment of this court in 2012. We need to rehearse just a few of the details.
There is no doubt that X and the accused had all been drinking on the night of the alleged rapes. Some of their movements were captured on CCTV footage around the town centre. Both McDonald and X became separated from their groups and at approximately 04.00 X wandered into McDonald's path. Within seconds, they had got into a taxi together and gone to the Premier Inn where the appellant had previously booked and paid for a room in McDonald's name. During the taxi journey, McDonald called or texted the appellant saying that he had "got a girl" or words to that effect.
X and McDonald entered the hotel at 04.15. The night porter, Gavin Burrough, described X as extremely drunk. En route to the room, Mr Burrough overheard her say to McDonald "You're not going to leave me are you?" to which there was no reply.
Ten to fifteen minutes later, the appellant arrived at the hotel by taxi with two other men. The appellant persuaded Mr Burrough to give him a key card to room 14, saying that he had booked the room for a friend who no longer needed it. The appellant made his way to room 14.
Mr Burrough went to check what was happening in the room and listened outside for two to three minutes. He concluded that a couple were having sex and returned to his desk. The other two males were seen outside the hotel looking through the bedroom window. They filmed what was happening using a mobile telephone until the curtains were closed.
After approximately thirty minutes McDonald left the hotel via reception. He told Mr Burrough that he should look out for the girl in room 14 because she was sick. The appellant left the hotel by an emergency exit. The two men met up outside and returned to the appellant's home.
X awoke at about 11.30. She was naked, alone and confused. She says she did not remember arriving at the hotel. She tried to piece together with friends what had happened. Some hours later she contacted the police. She did not allege she had been raped; to this day she has not alleged she was raped or that she was incapable of consenting to intercourse. Her evidence was simply that she did not remember what happened in room 14 and there was no scientific evidence to help.
The evidence as to sexual activity in room 14 came solely from the appellant and McDonald themselves. They were arrested on suspicion of rape on 31 May at 16.40. They were interviewed that night, the next morning and on a later occasion in July. Both of them answered all questions. They were aware that no allegation of rape had been made against them, yet they both volunteered that they had sex with X.
The appellant said that he had booked a room at the Premier Inn at approximately 16. 00 or 17.00 on the afternoon of the alleged rape. After their night out, he received a text from McDonald which said 'I've got a bird.' He decided to go to the Premier Inn with his friend Jack and his half-brother Ryan to look through the windows. When they found the curtains closed, the appellant obtained a key card from reception and entered the room. McDonald was having sexual intercourse on the bed with a woman. McDonald invited the appellant to join in. The appellant performed oral sex on X and then they had sexual intercourse, during which she adopted a position on all fours ('doggie style') and used the words, 'fuck me harder.' McDonald left the room and the appellant followed shortly afterwards, leaving the hotel via a fire escape.
Trial
The defence case at trial, confirmed in large part by McDonald, was to similar effect. The appellant claimed that McDonald was having consensual sexual intercourse with X when the appellant entered room 14. As the appellant entered the room, McDonald stopped having intercourse with X and invited the appellant to join in, with X's assent. The appellant performed oral sex upon her at her request and then had vaginal intercourse with her with her consent. During the intercourse she turned over on all fours and invited him to 'fuck her harder.' X moved to the edge of the bed and they changed positions, continuing to have intercourse. She was enthusiastic, awake and gave no indication that she was not capable of consenting. He accepted she may well have been under the influence of something, but asserted that she was perfectly capable of exercising her choice as to whether to engage in sexual activity and took the lead in most of what took place. At the very least, the appellant reasonably believed that she had consented.
The defence had intended to make an application under section 41 of the YJCEA to call evidence from two men (Mr Sam Fisk and Mr Lloyd Hobson) to rebut X's assertion in her third interview that she would not have sex with a stranger. This was abandoned when the Crown decided not to use her evidence to that effect.
The issues for the jury were: 1) did X consent (or have the capacity to consent) to sexual intercourse with the accused? and 2) if not, did the accused reasonably believe that she consented?
Post verdicts
On 20 April 2012, the day the jury returned their verdicts convicting the appellant but acquitting Macdonald, another man called Tristin Owens contacted the police. There is a note of his call: 'Caller states that two weeks after alleged incident of rape in Rhuddlan he saw female concerned (X). He slept with her and he can't understand why she would sleep with someone so soon after a rape.' He wanted to make a statement. A police officer spoke to him and referred him to the defence solicitor.
Many of the appellant's family and friends had been outraged by the verdict and were considering what they could to support an appeal. Mr Owens was approached by one of them, a man called, Jack Higgins who is a mutual friend of Mr Owens and the appellant. Mr Higgins wanted to know if Mr Owens would be prepared to talk to the defence solicitors Brabners.
Mr Ripley of Brabners spoke to Mr Owens on the telephone. By this time the focus of the defence team had become X's alleged memory loss after drinking. The defence wished to gather expert and lay evidence on this subject. Mr Owens told Mr Ripley of three separate occasions when he and X spent the night together and the next morning X asked if anything sexual had occurred and a fourth occasion when they had intercourse. Mr Ripley has very few notes of the conversation, but states it would be his normal practice to ask a witness like Mr Owens what, if anything, was said during any sexual activity. His colleague confirms that this was the case; albeit the CCRC has examined Mr Ripley's files and has found no notes to support the assertion. Mr Ripley cannot remember Mr Owens telling him anything about X being vocal. His email report to his supervising partner (the closest we have to a contemporaneous note) makes no reference to anything X said.
Mr Ripley drafted the first witness statement dated 16 May 2012, in which Mr Owens stated that he had known X for some time because she lived in the same street as his mother. In the months leading up to 30 May 2011, he was living at his mother's address. During this time, he met X at the Zu Bar on a number of occasions. On at least three of those occasions when both had consumed a lot of alcohol, X propositioned him by saying if he took her home, she would give him a 'good time.' On all three occasions,...
To continue reading
Request your trial
-
A v B
...1631, CAR v D [2011] EWCA Crim 2305, CAR v B [2012] EWCA Crim 1235, CAR v Doyle (Danny) [2010] EWCA Crim 119, CAR v Evans (Chedwyn) [2016] EWCA Crim 452; [2016] 4 WLR 169, CAR v Guthrie (Germaine) [2016] EWCA Crim 1633; [2016] 4 WLR 185, CAR v H [2007] EWCA Crim 2056, CAR v Harrison (Carl R......
-
A v B
...1631, CAR v D [2011] EWCA Crim 2305, CAR v B [2012] EWCA Crim 1235, CAR v Doyle (Danny) [2010] EWCA Crim 119, CAR v Evans (Chedwyn) [2016] EWCA Crim 452; [2016] 4 WLR 169, CAR v Guthrie (Germaine) [2016] EWCA Crim 1633; [2016] 4 WLR 185, CAR v H [2007] EWCA Crim 2056, CAR v Harrison (Carl R......
-
Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal
...InCriminal Appeal Cases’ (2004) 1(2) Justice Journal 95 and also Roberts and Weathered, above n. 1.125. [2016] EWCA Crim 1758.126. [2016] EWCA Crim 452. Ched Evans was a professional football player and the case had attracted a large amount ofpublicity. The case was sent for retrial and he ......
-
Victim representation for sexual history evidence in Ireland: A step towards or away from meeting victims’ procedural justice needs?
...by the House of Lords in R v H [2004] 2 AC 134: 145–146.Judge v UK, Application No. 35863/10, 2011 SCCR 241 at 28.R v Ched Evans [2016] EWCA Crim 452.LegislationAn Garda Síochána Victims’ Charter (IRE).Civil Legal Aid Act 1995 (IRE).Code of Practice for Victims of Crime 2015 (UK).Criminal L......
-
Rape Trials and Sexual History Evidence
...its object of preventing the illegitimate use of prior sexualexperience in rape trials’: [2001] UKHL 25 at 28.6. Ibid.7. RvChed Evans [2016] EWCA Crim 452.8. For ease of reference, the terms ‘rape’ and ‘rape trials’ are used throughout, but should be taken to include all sexual offencesand ......
-
The Moorov doctrine and coercive control: Proving a ‘course of behaviour’ under s. 1 of the Domestic Abuse (Scotland) Act 2018
...for those ‘involved in evidence-83. Ibid. at [32].84. At least prior to the Domestic Abuse (Scotland) Act 2018.85. RvChed Evans [2016] EWCA Crim 452.86. The similarity exception under s. 41(3)(c)(i) of the Youth Justice and Criminal Evidence Act 1999 applies where consent is atissue and sex......