Colin Anthony Miller v R
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson |
| Judgment Date | 09 July 2010 |
| Neutral Citation | [2010] EWCA Crim 1578 |
| Docket Number | Case No: 2009/04585/C1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 July 2010 |
[2010] EWCA Crim 1578
His Honour Judge Pawlak
Before: Lord Justice Leveson
Mr Justice Tomlinson
and
Mr Justice Davis
Case No: 2009/04585/C1
T20080986
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN CROWN COURT
Alper Riza QC (instructed by Kayders Solicitors) for the Appellant
Robin Miric (instructed by the CPS) for the Crown
Hearing dates : 24/06/2010
Lord Justice Leveson :
On 31 July 2009, in the Crown Court at Wood Green before Judge Pawlak and a jury, this appellant was convicted by majority verdict (10:2) of five counts of rape of a female child under 13. On 18 September 2009, he was sentenced, on each count, to an indeterminate sentence of Imprisonment for Public Protection under section 225 Criminal Justice Act 2003, with a minimum term of 7 years. For a further offence of failing to comply with notification requirements (to which he had pleaded guilty), he was sentenced to a term of 6 months imprisonment concurrent. In relation to a ruling on the admissibility of evidence of propensity, he appeals by leave of the single judge; a further ground of appeal in relation to the summing up is renewed.
The background can be shortly summarised. In 1987, the grandmother of the complainant (“Z”) came to the UK, followed, in 1994, by her mother and uncle (the appellant). Z, then a baby, stayed in Jamaica but, shortly after her twin brothers were born in 1994, she came to this country. In October 2001, Z's mother married a man who then became Z's step-father (“the step-father”).
An allegation that Z's mother had assaulted her surfaced in March 2004 and was investigated by social services. On 25 July 2004, Z went to Jamaica for some seven weeks and then returned to Britain: there was no further social services involvement with the family. In February 2006, Z's mother took her to Jamaica and returned to Britain alone although she, the stepfather and Z's brothers then visited Jamaica for 19 days from 28 March 2006.
Some time before August 2006, Z made her first complaint, relating to the step-father, to Z's aunt and, on 1 November 2006, Z was seen by a doctor as a result of vaginal discharge on her knickers seen by her aunt. A letter dated 26 December 2006, written in pencil by Z to her mother, and a copy of that letter written in pen and dated 23 January 2007 surfaced in the early part of 2007. The letter detailed abuse that she had suffered as well as intimating that she had also been abused as a younger child. Sometime in March 2007, the aunt showed the letter to Z's grandmother, then on holiday in Jamaica. During the same month, the complaint was repeated to another female relative over the telephone. Finally, in April 2007, Z's mother received the January letter in England.
On 10 February 2008, Z, then aged 14, landed at Gatwick Airport having travelled alone from Jamaica. While at the airport, she informed a member of the airline staff that she was frightened to go home; she complained that, when she had been living in London two years previously, she had been raped by her uncle. She also complained about her stepfather. Z repeated the allegations to two armed officers.
Not surprisingly, this complaint was taken very seriously and, on 14 February, she was interviewed by the police. In brief, she said that she had first been raped in March 2005, after her 11 th birthday, at her grandmother's address, where the appellant was living. She used to stay at her grandmother's home on Friday nights before going to the local church on Saturdays and she was then raped almost every week from then until September 2005 when the appellant left the house. In short, she alleged that she and one of her brothers would sleep in the appellant's room. One night the appellant came into the room, crawled over her brother so that he was in the middle of the bed, and kissed her. She told him he was bad. He didn't say anything and they fell asleep. Later he woke up and started rubbing her leg before turning her over onto her back and lying on top of her. He removed her and his underwear, still managing to hold her down, and put his penis in her vagina. She tried to get him off but he was too strong. Afterwards, he said “Don't tell or else”. He put her brother back in the middle of the bed and just went to sleep. Her brother slept through it. The rapes carried on almost every week.
At the time that she complained of rape, Z also alleged that the stepfather had indecently assaulted her, also on a regular basis, commencing a couple of months after the rapes started. On 11 July 2008, the appellant was arrested at his girlfriend's address; he was interviewed and responded in terms that foreshadowed his defence: he had never had sex with Z and although he had slept at his mother's house, he had not done so very often.
The appellant and the stepfather (who had also been arrested and interviewed) were jointly indicted. The appellant initially faced six counts to represent the series of rapes that she alleged; the judge directed an acquittal in respect of one count because Z had been unable to recall that there was a period of time, encompassed by that count, when her grandmother was in fact in America: thus the jury considered five allegations. For the sake of completeness, we add that the stepfather was charged with a series of eight counts of sexual assault: he was acquitted on all counts by the jury.
For the purposes of this judgment, and the analysis of the grounds of appeal, it is unnecessary further to rehearse the detail of the allegations or the evidence called either by the prosecution or the defence. What is important, however, is that the Crown sought also to rely, as evidence of propensity, on the fact that, in November 1997, the appellant had been convicted of an offence of rape. The defence contended that this single conviction, in very different circumstances, was not capable of amounting to evidence of propensity and, therefore, did not fall within the gateway described in s. 101(d) and 103(1) and (2) of the Criminal Justice Act 2003 (“the Act”).
The circumstances of that conviction for rape were undeniably serious. In short, with two or three others, on 24 February 1997, the appellant (albeit then only 16 years of age) had participated in a 'gang' rape of a 15 or 16 year old girl of his acquaintance in a car park; he had been the first to rape the girl. The allegation had been contested on the grounds that intercourse was consensual but he had been convicted by a jury and sentenced to a term of 5 years detention under s 53(2) of the Children and Young Persons Act 1933.
Before outlining the argument advanced before the trial judge and repeated in this court, it is necessary to explain the rather unusual course that was taken before the judge. In the normal course of events, in order to justify a ruling in its favour, the Crown had, first, to establish pursuant to s. 103(1)(a) of the Act that the appellant had a propensity to commit offences of the kind with which he was charged (in circumstances when it was not the case that having such a propensity made it no more likely that he was guilty of the offences or any one of them). In addition, where, as here, the Crown sought to rely on the appellant's conviction for an offence of the same category and description as the one with which he was charged, such reliance was not possible if the court was satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case: see s. 103(2) and (3) of the Act.
In fact, Mr Alper Riza Q.C., for the appellant, did not ask the court to rule on whether the length of time since the conviction or any other circumstance rendered it unjust to admit it. Because it had been decided that it was part of the defence case (should it be necessary to deploy it) that Z knew of the conviction, and had deliberately targeted the appellant to add credibility to a false allegation, he only asked the judge to rule on whether the conviction was capable of amounting to evidence of propensity without going on to consider s 103(3) of the Act (or, for that matter, s 78 of the Police and Criminal Evidence Act 1984). On the basis that the judge ruled that it was, Mr Riza made it clear that he would then wish to agree to the evidence being admitted (under s 101(1)(a) of the Act) so as to be able to make the forensic point that it had been agreed that the jury should hear this prejudicial material because it went some way to explaining why the appellant had been targeted by Z either deliberately or in her imagination.
The argument advanced by Mr Riza was grounded in the approach identified in R v. Hanson [2005] 2 Crim. App. R. 21, in which the Vice President, Rose LJ made it clear (at para. 9):
“There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it...
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