R v Malachi Lloyd Williams
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 25 January 2017 |
| Neutral Citation | [2017] EWCA Crim 281 |
| Date | 25 January 2017 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2016/02426/B4 |
[2017] EWCA Crim 281
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Oxford Crown Court
St Aldates
Oxford
OX1 1TL
The Lord Chief Justice of England and Wales
( Lord Thomas of Cwmgiedd)
Mr Justice Spencer
and
Mr Justice Stuart-Smith
No. 2016/02426/B4
Mr I Worsley appeared on behalf of the Appellant
Mr C Thomas appeared on behalf of the Crown
Wednesday 25 January 2017
THE LORD CHIEF JUSTICE
On 16 May 2016, following a trial in the Crown Court at Gloucester before the Recorder of Gloucester (His Honour Judge Tabor QC) and a jury, the appellant was convicted of rape and was sentenced to six years' imprisonment. He had pleaded guilty to two other offences (one of taking a conveyance without authority and one of assault occasioning actual bodily harm) shortly before the trial, for which he was sentenced to a consecutive term of nine months' imprisonment.
The issue
The appellant appeals against conviction with the leave of the single judge on a narrow and highly technical basis. He contends that he was tried on an indictment which was a nullity and therefore, because it was a nullity, both the guilty pleas to the earlier counts and the count of which he was convicted should be set aside and the matter retried.
It is of particular importance to look at such a submission in the context of the 21 st century. If the appellant's submission is correct what would be required is that the victim, who has given evidence of a serious sexual offence, would have to give her evidence for a second time in circumstances which are, as we shall explain, purely technical. There is no underlying merit whatsoever in any of the points advanced and the appellant has suffered no unfairness or prejudice whatsoever. It is necessary first to set out the facts and evidence relating to the matters in the indictment.
The evidence relating to the assault and the taking of the conveyance
The background to the offences to which he pleaded guilty is straightforward. In the early hours of 15 November 2015 (at about 4am) the appellant went to the house of "LS", a former girlfriend and the mother of his three children, in order to obtain some money to buy crack cocaine. She initially refused to give him anything. During the course of an argument, the appellant assaulted her, it is said, by grabbing her by the throat and obtained a small sum. That incident was initially charged as robbery in count 2, but a count of occasioning actual bodily harm was added as count 4. He pleaded guilty to that offence in count 4.
Having obtained the money, he left in LS's car to purchase the crack cocaine. That formed the basis of count 3 (taking a conveyance without consent). He also pleaded guilty to that offence.
The evidence relating to the rape
The evidence relating to the count of rape, count 1 on which he was tried, can be briefly summarised.
At about 7am the appellant pulled up outside the house of another former girlfriend, "SI". The appellant and SI had been in a casual sexual relationship since meeting earlier in 2015. SI alleged that during the relationship the appellant had twice put his hands around her throat. That was denied by the appellant.
At the time when the appellant arrived, SI was at home with another man with whom she had started a relationship. The appellant shouted her name. SI went out to see him. She got into the car and a conversation occurred, after which the appellant drove to a nearby car park. It was the evidence of SI that, after the car was parked, the appellant received a phone call. He told SI to remain quiet. When she said something audible, he put his hands around her neck. The call ended. Following a second brief call, the appellant started to engage in sexual advances to SI and eventually he raped her. After that, he took her home.
It is unnecessary to set out the further evidence that supported the Crown's case. It included the bad character evidence in relation to the incidents involving LS to which he had pleaded guilty.
The defence case was that SI had instigated the sexual activity and that the appellant had acted with full consent. She had given the appellant oral sex at his request and then voluntarily positioned herself on the driver's seat so that he could have sexual intercourse with her. He said that her account was entirely fictitious.
Having heard the evidence, the jury convicted the appellant.
The point that has arisen does not in any way concern anything that happened in the trial; no criticism is, or possibly could, be made of the fairness of the procedure, of the judge's rulings on bad character evidence, or his summing-up. It was a perfectly fair, lawful and proper trial.
The ruling on joinder
The point that has arisen is this. The indictment as preferred originally in the Crown Court contained three counts: the counts of robbery and taking the car, which related to the earlier of the incidents we have described, and the count of rape, which related to the second incident.
On 18 April 2016, an application to sever the counts relating to rape from the other two counts was made to His Honour Judge Cullum. It was no doubt made with the eloquence with which counsel for the appellant, Mr Worsley, has presented his arguments on this technical point to us today, for which we would like to pay tribute. The judge considered the position under the Criminal Procedure Rules (as they then were): Crim PR 10. 2(3) which provides:
"An indictment may contain more than one count if all the offences charged –
(a) are founded on the same facts; or
(b) form or are part of a series of offences of the same or similar character."
It was contended by Mr Worsley that the offences did not form a series of offences and that they were not of the same or similar character.
It is clear the offences plainly were a series of offences. They occurred within a very short temporal span of a few hours in the early hours of 15 November 2015. The more difficult point that was before the judge was whether they were offences of the same or similar character. In a short, eloquent ruling the judge said:
"The [appellant] was violent to both women. It is that that really brings the Crown to say that the matter is properly joined and should be tried together with features of the one being relevant to the jury's consideration of the second. Both women were subjected to a degree of violence and both were in the sense of being controlled on that occasion, the Crown say, by the [appellant]. The violence took a particular form, although only described briefly within the statements. It is suggested that both were the subject of being strangled to a degree by the [appellant]. That, in my judgment, is the unusual feature of the case. Putting the hands around the neck of a partner, or ex-partner, is a dramatic event, and here, within hours, the [appellant] is alleged by an amazing coincidence, the Crown would urge the jury to say, to have done the same thing to both complainants. Thus, in my judgment, [they are] allegations of violence towards women over whom the [appellant] had a physical control. In the first case, it manifested itself in stealing, and in the second in a sexual act – rape. Although they come from different Acts of Parliament, the underlying feel of this case is how the [appellant] was violent to those women."
The judge went on to say that, based on those factors, he was satisfied that the offences were of the same or a similar character.
We understand that the judge was referred to two of the leading authorities on the meaning of the words "same or similar character", namely, R v Kray [1971] QB 125, and Ludlow v Metropolitan Police Commissioner [1971] AC 29, as these cases decided under the then applicable Indictment Rules, continue to apply, as the wording is...
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