Mandeep S v R
| Jurisdiction | England & Wales |
| Judge | Lord Justice Fulford |
| Judgment Date | 19 February 2015 |
| Neutral Citation | [2015] EWCA Crim 177 |
| Docket Number | Case No: 201302432 B2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 19 February 2015 |
[2015] EWCA Crim 177
Lord Justice Fulford
Mr Justice Hamblen
and
His Honour Judge Wait
(sitting as a judge of the Court of Appeal Criminal Division)
Case No: 201302432 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Southhampton Crown Court
His Honour Judge Hope
T20127186
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Balbir Singh (instructed by Mandla Bhomra and Co) for the Appellant
Mr David Richards (instructed by Crown Prosecution Appeals Unit) for the Respondent
Hearing dates: 25 November 2014
Introduction
The provisions of the Sexual Offences (Amendment) Act 1992 apply to some of the offences charged in this case. No matter relating to the victim shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the victim of the relevant alleged crimes. This prohibition applies unless waived or lifted in accordance with s.3 of this statute.
On 17 April 2013 in the Crown Court at Southampton before Judge Hope and a jury the appellant, A (who is now aged 29), was convicted of rape and sexual assault by penetration (counts 2 and 4 respectively). He was acquitted of threats to kill (count 5). On 22 May 2013 he was sentenced to 16 years' imprisonment on count 2 and to a concurrent term of 8 years' imprisonment on count 4.
C, the appellant's mother, was convicted of witness intimidation (count 8) and was sentenced to 18 months' imprisonment. She was acquitted of threats to kill (count 7).
B, the appellant's father, was convicted of sexual assault on a female (count 3) and sentenced to 2 years' imprisonment. The jury were unable to reach a verdict on the separate count of rape that he faced (count 1). He was acquitted of making threats to kill (count 6)
Before this court the appellant appeals against his sentence by leave of the single judge. Furthermore, he renews his application for leave to appeal against his conviction following refusal by the single judge. When the case was listed on 9 July 2014, the Full Court (Fulford LJ, Foskett J and the Recorder of Bristol) adjourned the hearing and a request by the appellant to introduce fresh evidence in order to give the prosecution an opportunity to investigate the material on which the appellant proposed to rely in support of his application for leave to appeal against conviction. The court ordered the prosecution to file any relevant evidence by 13 August 2012. The appellant was afforded until 27 August 2014 to file his skeleton argument, with the prosecution's response to be filed 7 days thereafter.
The directions hearing took place on 14 November 2014 before the present constitution. Mr Singh, on behalf of the appellant, informed the court that he wished to call Harjap Singh (statement dated 7 July 2014) and Balwinder Singh Chahal (statement dated 8 July 2014). The prosecution applied to call the complainant (statement dated 8 August 2014). Mr Richards, for the Crown, conceded that the court should hear the evidence of the appellant's witnesses, Singh and Chahal. The court, in the result, granted leave to appeal, and directed that the three witnesses were to give evidence.
The Facts
The appellant was married to the complainant. They lived with the appellant's parents (his co-accused) in Southampton. The appellant and the complainant had one child, born in 2010. She had been married before – this was said to have been a love match– and the complainant believed that she was treated badly by the appellant's family because of this earlier marriage. The complainant alleged that the appellant had an extramarital affair during their marriage with a woman who lived in Birmingham, with the apparent knowledge and consent of his parents.
The complainant's evidence, which included video-recorded interviews with the police, was to the effect that the appellant did not show consideration towards her even during what she described as the occasions when they had consensual sexual relations. Their marriage deteriorated over time, and the appellant behaved violently towards the complainant; she told him that she did not wish to have physically intimate relations with him because he did not treat her well. Ultimately, she considered she had no choice but to submit to his demands – frequently wholly against her will – and she informed him that if he persisted in abusing her in this way it would be the equivalent of having sex with a dead body. She maintained that from at least March or April 2012, the appellant raped her every few days, and the couple had numerous fights and arguments about sex. These events involved anal and oral rape. The complainant suggested that he was extremely persistent about having sexual relations with her, and she said that he beat and attacked her if she resisted his demands. His behaviour deteriorated when he had been drinking. Once he hit her very hard on her back and she showed the officers a long mark on her right hand inflicted when she tried to push the appellant away. Additionally, he pulled her hair, twisted her arms and threatened to cause unobservable internal injuries.
Although the complainant gave some particulars of the occasions when, and the circumstances in which, she was raped or sexually assaulted, in the main the allegations were broadly similar in nature, albeit she set out in considerable detail the various ways in which her husband repeatedly mistreated her. Therefore, the incidents of rape and assault constituted more of a pattern of behaviour on the part of the appellant, as opposed to clearly identifiable individual incidents.
As to the complaint that he sexually assaulted her, the complainant additionally asserted that whilst they were at home he frequently inserted his fingers into her vagina and anus without her consent.
The complainant's account as regards at least some of the incidents changed during the course of her evidence – for instance, there was an occasion when the appellant taunted her on his return from visiting his girlfriend in Birmingham and although her original account was that he raped her, in evidence she suggested that she successfully resisted his violence on this occasion. Similarly, she described an incident in the communal hall in greater detail during her evidence than in the pre-trial interviews. It is relevant to note that she was tested on these changes during the course of her cross-examination.
On 6 July 2012 the police were called to deal with an incident involving the appellant and the complainant. She alleged that the appellant and her father-in-law, B, had raped her. Over the following weeks the police conducted a number of interviews with the complainant during which she accused both men of raping her over a period of 3 years. It is to be noted that she had made previous complaints, including the allegation that her father-in-law had raped her, but this was the first allegation of this kind against her husband.
Turning, briefly, to the position of her father-in-law, B, she alleged that his sexual assaults began with a considerable amount of touching. This progressed to a particular incident of sexual assault (count 3) and then rape (count 1) after she was persuaded to give him a leg and head massage in his bedroom. Thereafter, he sexually assaulted and raped her on a regular basis.
The prosecution relied principally on the complainant's account. This included evidence from three women with whom she spoke concerning these events: Eileen Levi, Amerjitand Jennifer. They each suggested that the complainant told them that her husband and father-in-law were raping her, and they said they had seen bruising to her body. D, the husband of the appellant's lover, claimed that both the appellant and his father had had sexual intercourse with his wife.
It is of relevance to note at this stage that the prosecution included three " multiple incident counts" (counts 1, 2 and 4) in the indictment. In adopting this approach, the Crown relied on the Practice Direction then in force, Practice Direction (Criminal Proceedings: Arraignment) [2008] 1 WLR 154 at IV.34.14, which provides:
In […] cases, such as sexual or physical abuse, a complainant may be in a position only to give evidence of a series of similar incidents without being able to specify when or the precise circumstances in which they occurred. In these cases, a "multiple incidents" count may be desirable. If on the other hand, the complainant is able to identify particular incidents of the offence by reference to a date or other specific event, but alleges that in addition there were other incidents which the complainant is unable to specify, then it may be desirable to include separate counts for the identified incidents and a "multiple incidents" count or counts alleging that incidents of the same offence occurred "many" times. Using a "multiple incidents" count may be an appropriate alternative to using "specimen" counts in some cases where repeated sexual or physical abuse is alleged. The choice of count will depend on the particular circumstances of the case and should be determined bearing in mind the implications for sentencing set out in R v Kidd [1998] 1 WLR 604 .
The present iteration of the Criminal Practice Directions [2013] 1 WLR 3164; [2013] EWCA Crim 1631 repeats this text essentially unchanged at paragraph 14A.13. This part of the practice direction supplements Rule 14.2(2) of the Criminal Procedure Rules which permits the prosecution to include...
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