R v Chance
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE ROCH |
| Judgment Date | 12 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Crim J0712-8 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4012/G3/87 |
| Date | 12 July 1988 |
[1988] EWCA Crim J0712-8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Roch
and
Mr. Justice Henry
No. 4012/G3/87
MR. J. LLOYD-ELEY, Q.C. appeared on behalf of the Appellant.
MR. D. PAGET appeared on behalf of the Crown.
This is the judgment of the Court which in the absence, of the Lord Chief Justice he has asked me to read.
On 23rd June 1987 at the Central Criminal Court before His Honour Judge Capstick and a jury, this appellant was convicted on count 1 of rape, on count 2 of assault occasioning actual bodily harm and on count 3 of wounding with intent to resist arrest. He was sentenced to eight years' imprisonment on count 1, two years' imprisonment on count 2 to run concurrently and six months' imprisonment consecutive on count 3.
He appeals against conviction on counts 1 and 2 by leave of the single Judge. He also renews his application for leave to appeal against sentence, that application having been refused by the single Judge.
As to counts 1 and 2, it was not contested, although it was not formally admitted, that the complainant had been raped and that she had been assaulted and had suffered injuries amounting to actual bodily harm. The medical evidence, quite apart from that of the complainant, made it clear that she had been raped. No advocate of any experience would have dreamt of challenging that fact. Indeed a formal admission to that effect might well have been made, although in the event it was not.
The facts of the case were these. The complainant was employed as a resident nanny by the witness Susan at her London flat. According to the complainant, on 6th October 1986 in the morning the appellant called at the flat when she and the child were the only people there. The complainant said that she recognised him as the person who five daysearlier, on 1st October, had called at the flat asking for "Sue" giving his own name as "Terry" or "Jerry" On 6th October he again asked for Sue.
Thinking that the man was acquainted with Susan, the complainant allowed him into the flat where he wrote a message on a note pad. The appellant then asked the complainant if Sue was still with the "Paki bloke", whereupon the complainant asked him if he was sure that he had the right person. A brief discussion then ensued, whereupon the man stepped forward, pulled her jumper and struck her several times in the face. He raped her and also forced his penis into her mouth.
The complainant reported the matter to the police and went to hospital for medical treatment. Amongst other injuries she had an incipient black eye on each side. Her right contact lens had been partially embedded in her eye. Some of her teeth had been chipped. She had bruising on the right upper arm. Vaginal swabs confirmed that sexual intercourse had taken place.
Susan gave evidence that on a day in October, which was probably the 3rd, a man called at her flat asking for Susan. On 22nd October there was a ring at the door but when she called out there was no reply. She looked over the balcony and there she saw the man who had called on 3rd October walking away from the flats.
The final event was on 28th October. On that occasion present in the flat were the complainant, Susan and also Detective Sergeant Avery. There was a ring at the front door. The complainant went to the door, looked through the spy-hole, but found that it had been covered. She asked who was there and a man called out. She said she recognised the voice as that of the man who had raped her. She put the safety chain on the door and started to open it, but the man on the other side of the door, who it transpired was the appellant, forced the door open pulling the safety chain away from the wall. Sergeant Avery took hold of the appellant and told him that he was being arrested. There then followed a struggle between the appellant and Sergeant Avery, which gave rise to the third count in the indictment. Susan gave evidence to the effect that this man, the appellant, was the same man who had called at the flat on the two previous occasions of which she had spoken, and the complainant likewise was in no doubt that this was the man who had raped her.
A handwriting expert gave evidence that the handwriting on the note pad could have been that of the appellant, although not necessarily so. There was further evidence that a fibre was found upon a cardigan which the appellant had on occasions worn, which matched the fibres of the pullover worn by the complainant on 6th October. The fibres were unusual.
The defendant gave evidence to the effect that he was at work on 1st and 3rd October and he called evidence from witnesses to support that claim. So far as the 6th October when the rape occurred, he had not been at work that day, but he had remained in bed with his girl friend and their child until noon. He called his girl friend to give evidence to that same effect.
On 28th October he had decided to go and visit a woman he knew called Susan Pereira in order to get references for work. He rang the bell, the door was opened and he was then grabbed round the throat by a man who was acting very violently. He did not realise it was a policeman and thought he was being mugged.
The problem facing the Judge is easy to state. This was par excellence an identification case and a Turnbull direction was accordingly called for. This is what the Judge gave. He accurately reflected the way in which the case had been conducted. He defined rape, adding: "… let me say at once that there is no issue but that [the victim] was raped. Indeed you have heard independent evidence about that as to the semen found inside her and the injuries that she suffered. … The sole issue for you on counts one and two is whether you are satisfied it was the defendant who raped and assaulted her."
He then gave an impeccable Turnbull direction, prefacing that direction by saying this: "…. this is a case which involves evidence of identification. In a case like this there should be corroboration of that identification–that is evidence which comes from an independent source that is independent of the victim, which supports the correctness of her identification and thus that the defendant committed these offences on the 6th of October. I will point out to you the evidence which, if you accept it, is capable of constituting corroboration. It will be for you to decide whether in fact it does corroborate; that is, whether it confirms and supports the correctness of her identification." He then set out the potentially corroborative evidence as to which no complaint is made.
Should he have gone on to give the full warning as to the danger of convicting on the evidence of the complainant alone?
Mr. Lloyd-Eley for the appellant, whilst conceding that the authorities on this subject are far from clear, submits that this Court should, as he puts it, reassert the necessity in all cases in which a sexual offence is charged for a direction that it is dangerous to convict on the uncorroborated evidence of a complainant; that such a direction should be given even if the only live issue is identification; that a Turnbull direction on its own is not enough; that in the present case there should have been a full direction on the "dangers" involved and on the necessity for corroboration of the complainant's evidence of identification; that the Judge's direction was accordingly at fault and that the conviction should be quashed.
We turn now to the authorities.
In Sawyer (1959) 43 Cr. App. R. 187, the charge was one of indecent assault on a 9-year old boy. Counsel had taken the attitude, "My client's case is that he was not there and accordingly I am not in a position to dispute that an act of indecency took place. All I am saying is it was not done by my client." Thus there was no overt dispute with regard to the assault. No direction about corroboration was given. The Court held that in such a case the ordinary warning must be given, particularly so when the complainant was a child who, although sworn, was only 9 years of age.
Trigg (1963) 47 Cr. App. R. 94 involved a charge of rape. The fact that the complainant was assaulted and raped was, as Ashworth J. said in giving the judgment of the Court, "quite rightly not challenged". The sole issue was one of identity. No direction on corroboration was given. Having cited passages from Sawyer and Campbell (1956) 40 Cr. App. R. 95, the judgment continues: "In the view of this Court these decisions establish quite plainly that in a sexual case of this sort the jury must be warned of the danger of acting on the complainant's evidence unless there is corroboration." There is no suggestion which we can discover in that judgment that the girl's evidence of the rape, as opposed to her identification evidence, should have been the subject of any warning.
Midwinter (1971) 55 Cr. App. R. 523 was an indecent assault case. The woman complainant gave a description of her assailant, but was unable to pick the defendant out on an identification parade. There was no direction as to corroboration. Cairns L.J., giving the judgment of the Court, having referred to Trigg, concluded that, the girl having given a description of her assailant, it was "vital that there should have been … the warning that corroboration of the girl's evidence of the description that she had given was required". Once again there was no suggestion that any warning in relation to her evidence about the assault itself which seems not to have been in issue should have been given.
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