R v Fenlon
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 23 June 1980 |
| Judgment citation (vLex) | [1980] EWCA Crim J0623-1 |
| Docket Number | Nos. 2245/B/79: 2277/B/79: 2478/B/79 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 June 1980 |
[1980] EWCA Crim J0623-1
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Park
and
Mr. Justice Anthony Lincoln
Nos. 2245/B/79: 2277/B/79: 2478/B/79
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. J. GOLDBERG appeared as Counsel on behalf of the Appellant Kevin Fenlon.
MR. M. MITCHELL-HEGGS appeared as Counsel on behalf of the Applicants Raymond Frank Neal and Gary Stephen Neal.
On 21st May of last year in the Central Criminal Court the appellant Fenlon and the applicants Raymond Neal and Gary Neal were convicted of rape and each was sentenced to five years' imprisonment. The appellant Fenlon now appeals against his conviction by leave of the Single Judge, and renews his application for leave to appeal against sentence after refusal by the Single Judge. Raymond and Gary Neal both renew their applications for leave to appeal against sentence, after a similar refusal, and both in addition apply for an extension of time in which to apply for leave to appeal against conviction. The reason for the necessity to apply for an extension of time is that when the learned Single Judge gave leave to Fenlon to appeal against conviction these two men, to put it vulgarly, jumped on the bandwagon; having previously not wished to appeal against their conviction, they now wish to do so.
The facts of the case, as briefly as possible, are these: On 28th June, 1978 Fenlon, the two Neals and a man called Irwin, who was convicted but who has not appealed, and three other men were drinking in a public-house in which the complainant, a woman called Dawn, married with a young child but separated from her husband, had also been drinking. To cut a long story short, she was picked up by these young men, and at closing-time she and the seven men went off in two motorcars to the flat of Raymond Neal's parents, who were away at the time.
There is no need to go into the details of the events. The long and short of it was that the girl alleged that in due course she was sexually assaulted and raped in the bedroom of that flat by a number of those men; that she had been held down by others whilst being raped by particular individuals; that she heard Raymond Neal say words to the effect: "Hit the fucking bitch over the head", and someone else say: "Stop, you' 11 suffocate her." She alleged that when these events were over, and after she had been raped by these various young men on a number of occasions, she was pulled down the stairs by Fenlon and put out of the flat. She was hysterical. She knocked on the door of a neighbouring flat, but the lady there, Mrs. Longmore, told her that if she did not go away she would call the police. Dawn said: "Yes, please phone the police." She then went out into the street, and evidence was given by a taxidriver that he saw her running across the road, wearing a dressing-gown but no shoes. She was distressed and crying. He drove her to the police-station, and there she was seen by a young officer. She was screaming and still hysterical. She was asked what was wrong, and she said that she had been raped. The hysterical behaviour went on for between an hour and two hours. She was seen by a doctor; there was a scratch on her chin and there were pinpoint haemorrhages on the collarbone. In due course swabs were taken from her private parts, from the rectum and the vagina and adjoining areas, all of which showed the presence of human semen.
It was sought to cross-examine her about previous acts of intercourse which would account for the presence of the semen. She denied having had intercourse prior to this occasion for about six weeks or so. That particular evidence and the way in which it came to light is the subject of one of the grounds of appeal in this case. She was wearing a Kotex sanitary pad when she was examined, and that also had evidence of semen upon it. That also was a matter which was in issue.
The defence put up by those various young men was not consistent the one with the other. I think it is fair to say that the general effect was that they all appreciated that some sexual activity had gone on, that it must have gone on, in the flat, but in each case it was not that particular individual who had taken any part in it. Again that is the subject of one of the grounds of appeal. In the end the jury came to the conclusion, so far as these three young men were concerned, that they were satisfied as to their guilt.
The main burden of the prosecution evidence, apart from that of the girl, was evidence given by the police of various interviews which they had had with each of these men. So far as Fenlon was concerned, the policemen had made notes of what they said had taken place at two interviews that they had conducted with him. At the first interview, according to the police, he put forward an alibi defence, which he later freely conceded to be false. It is quite plain, if the police were to be believed, that at the second interview in effect he admitted his guilt on the charge of rape. He declined to sign those notes, saying that he had been previously advised by his barrister, possibly on another occasion, that he was not to sign notes in such a situation. Those are not the words he used, but they are the gist of them.
So far as the two Neals were concerned, they signed the notes of their interviews; at least they signed each page of the documents made by the police officers. The fact that Fenlon did not sign the body of the policemen's notes of the first interview is the basis of a further complaint. The grounds of appeal put forward by Mr. Goldberg on behalf of his client are, so far as they are appropriate, adopted by counsel on behalf of the Neals. We are grateful for the very clear and succinct way in which this appeal has been conducted by Mr. Goldberg. It is the view of all the members of this Court that the way in which he conducted the case was a model of that in which counsel should operate in this Court.
The first ground of appeal relates to the admissions alleged to have been made by Fenlon. That ground reads:
"The learned Judge wrongly ruled that the admissions allegedly made by Fenlon to the police in contemporaneous notes should go before the jury as exhibits. These notes were nowhere signed or initialled by Fenlon (in contrast to other defendants who had signed their notes of interview which were thus exhibited) and the contents were bitterly contested. The learned Judge so ruled against the wishes of both Crown and defence counsel. It is submitted there was no warrant in law for making such memory refreshing documents exhibits."
The rule as to such documents and whether they should be exhibits is set out in convenient form at para. 1573 of the 12th Edn. of Phipson on Evidence;
" Production; Inspection; Cross-examination. Where the witness has no independent recollection of the facts, the document used to refresh his memory must be produced; and even where he has such recollection this course should be adopted, in order that the opponent may have the benefit of cross-examination and of the witness refreshing his memory by every part. In Buxton v. Cummings, a dictaphone record of a witness's recollection of an interview, made by him immediately after the interview, was allowed to be put in. The Shorthand notes of an interview cannot, however, be put in en bloc, though specific questions and answers may be referred to. If produced, the opponent has a right to inspect those parts only which refer to the subject-matter of the case and also, of course, to cross-examine thereon. But cross-examination of the portions referred to by the witness does not make the document evidence against the cross-examiner, though it is otherwise with cross-examination upon independent parts.
"The rule relating to documents used by a witness to refresh his memory must be distinguished from the more general rule that where a party calls for and inspects a document held by the other party he is bound to put it in evidence if so required. The position was conveniently summarised by Sir Jocelyn Simon P. in Senat v. Senat. 'In my view the mere "'inspection of a document does not render it evidence which counsel inspecting it is bound to put in. I think that the true rules are as follow: Where a document is used to refresh a witness's memory, cross-examining counsel may inspect that document in order to check it, without making it evidence. Moreover he may cross-examine upon it without making it evidence provided that his cross-examination does not go further than the parts which are used for refreshing the memory of the witness: Gregory v. Tavernor. But if a party calls for and inspects a document held by the other party, he is bound to put it in evidence if he is required to do so: Wharam v. Routledge. The distinction is shown clearly in the ruling of Sir Cresswell Cresswell…. in Palmer v. MacLear and M'Grath.' In that case, a witness, during examination-in-chief, held in his hand notes which he had made from his day-book to refresh his memory, together with certain letters which had reference to the subject of inquiry. Counsel who cross-examined asked for the document and the judge observed...
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