R v Ullah
| Jurisdiction | England & Wales |
| Judge | The VICE PRESIDENT |
| Judgment Date | 14 October 1999 |
| Judgment citation (vLex) | [1999] EWCA Crim J1014-19 |
| Docket Number | No: 9805413/S3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 October 1999 |
[1999] EWCA Crim J1014-19
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Vice President
(Lord Justice Rose)
Mr Justice Brian Smedley
and
Mr Justice Penry-Davey
No: 9805413/S3
MR P CURRAN QC appeared on behalf of the Appellant
MR H BAISDEN appeared on behalf of the Crown
Thursday 14th October 1999
On 30th July 1998, at Manchester Crown Court, this appellant, following a trial before His Honour Judge Burke QC, was convicted by the jury, on a majority of 10 to 1, on the second count in the indictment, which alleged indecent assault on a female. He was acquitted on count 1, which alleged rape. He was subsequently sentenced to a suspended term of imprisonment and ordered to pay a sum towards the prosecution costs.
He appeals against conviction by leave of the Single Judge.
The events giving rise to the indictment took place on 16th October 1997. The evidence against the appellant came from the complainant, who was a girl of 17 years of age. She alleged that he had raped and indecently assaulted her. The appellant denied sexual intercourse. He admitted digitally penetrating her vagina and he admitted that she had performed oral sex on him but, in relation to those matters, he said that she had consented to that activity.
In a little more detail, the complainant came from a strict Muslim family, and was destined for an arranged marriage. She had a boyfriend, called B, of whom her parents disapproved. In consequence, she was ejected from the family home. She stayed thereafter, briefly, at the appellant's house, and he had offered her a job.
Thereafter, there was an evening when she went to a club called Joops, with the appellant and another man. According to the complainant, the appellant plied her with a considerable quantity of alcoholic drink and they danced together. In the early hours, when the club closed, the appellant escorted her out of the club and kissed her. She felt affected by the drink. He helped her into his car and drove her home. According to the complainant, he carried her into the flat, sat her on the bed and started removing her clothing. He put a T-shirt on her, lay on top of her, and started kissing. She was wearing knickers. She was having her period and she took out her sanitary towel. The appellant was naked and lay on her and removed her clothes. His penis was erect. He fingered her vagina. She said she told him "Get off, you bastard." He said he loved her and would ask her father if he could marry her. She said, in evidence, that she had not previously had sexual intercourse and that he had entered her with his penis and it hurt. She said that another man had come in, who was naked and tried also to rape her, but the appellant threw him out. She said the appellant put his penis in her mouth, in and out, and put her hand on his penis saying, "Look what you're doing to me." She went to sleep and woke at about 9.45 the following morning. There was no one else in the house but she did not leave immediately.
In cross-examination, she denied saying while dancing with the appellant, "Why don't you marry me? I love you." She denied having told a friend that she had enjoyed herself. She said that she and her boyfriend, B, had tried, some two weeks earlier, to have full sexual intercourse, but had stopped because it hurt.
She said that she knew the appellant had a girlfriend when she first met him and indeed she agreed that, on the morning after these events, when she was still in the appellant's house, she had a telephone conversation with the girlfriend who rang up and was not pleased when the telephone was answered by a female. She did not, however, accept certain aspects of that conversation which she was said to have had.
There was evidence from a Dr Eva Jacobs, who examined the complainant on the day after these events. She found a lovebite on the complainant's left chest below the collar bone, bruising to the base of the hymen and three ragged tears in the fourchette, which were strongly consistent with first ever penetrative activity within 72 hours before the examination, by penis or fingers.
A girlfriend of the complainant, called P, also gave evidence of seeing the complainant in a condition which was not her usual bubbly self.
The boyfriend, B, gave evidence, in the course of which he said that he had had no sort of sexual relationship beyond kissing with the complainant.
On arrest, the appellant denied the allegations made against him. He gave evidence. He was married but it was an arranged marriage and had not worked. He had the girlfriend to whom we have referred. He had been asked to provide the complainant with accommodation. He had offered her work.
On the night, at Joops, the complainant was merry but not drunk. They had kissed in the car. She had put her hand on his leg. He had not carried her into the house. She had gone upstairs with him hand in hand. They had laid down, kissing each other. He had fingered her vagina and she had performed oral sex on him. She had so acted willingly; he had not forced her, nor had they had sexual intercourse. She had never told him to get off. He had given her a love bite because she had asked for one. Another man had come in, but he was fully clothed and he had departed and the complainant and the appellant had gone to sleep. At no stage had he said that he wanted to marry her.
His girlfriend gave evidence, as we have said, of a telephone conversation which she had had with the complainant at the appellant's house on the morning after these events.
The Single Judge gave leave on the basis of criticisms of trial counsel's conduct of the case in relation to a tape recording. To that ground, in a moment, we shall return.
Mr Curran QC, who did not appear at the trial, invited the Court to grant leave to argue a further ground, not before the Single Judge, based on the jury's verdicts being inconsistent. It is common ground that the events giving rise to the second count in the indictment of indecent assault were the quite separate events in relation to oral sex. Count 2 was not an alternative verdict to the first count in the indictment, nor indeed was any direction given by the judge as to the possibility of alternative verdicts to rape in the form of attempted rape or indecent assault. In our judgment, in the light of a number of recent decisions of this Court, to which it is unnecessary to refer in any detail, it is quite impossible to contend that the verdicts of the jury were logically inconsistent; and logical inconsistency is a precondition to being able successfully to argue that a jury's verdicts were inconsistent so as to render a conviction unsafe.
In our judgment, there was no logical inconsistency in the jury not having been convinced that rape had occurred (particularly having regard to the defendant's admission that he had digitally penetrated the complainant), yet, on the other hand, being satisfied that the sexual conduct giving rise to the separate count of indecent assault was proved. Therefore, we did not grant leave to argue the ground based on inconsistent verdicts.
We turn, therefore, to the ground which was argued before us. In order to understand the way in which the submission is put, it is first necessary to rehearse one or two matters of history and then to recite certain passages in the transcript of a tape recording which was made of telephone conversations.
It is common ground that, after the complainant had given her evidence before the jury and had left the witness-box, telephone conversations made between her and other persons were recorded by an enquiry agent, it is conceded, illegally. Those recordings were made before B gave his evidence to which we have referred. Transcripts of those recordings became available to the defence at the conclusion of the prosecution case.
The complaint which is made is that those transcripts of those bugged telephone conversations ought to have been before the jury: if they had been, the jury's verdict might well have been different, because no jury could have ignored the contents of the tape recordings, when addressing the question as to whether or not they believed the complainant, particularly in a case where it was the complainant's evidence which effectively stood alone against the appellant.
The first transcript is of a conversation between the complainant and a friend called R. It suffices to say that the complainant was expressing anxiety as to what had been and might be the accounts given in relation to the complainant meeting another man, apart from the appellant, in the club on the night in question.
The next conversation took place between the complainant and B. It contains a passage which is in these terms:
"THE COMPLAINANT: She [which is plainly, as it seems to us, a reference to Dr Jacobs] said 'Have you had sex fully?' and I go 'Erm, why what do you mean?' She goes 'Erm. I go 'No, but not fully', and she goes 'All right, OK' but that means we didn't do it, you and me didn't do it.
X: You should have said that he was hurting me.
THE COMPLAINANT: Yes.
X. When was that before or after the rape?
THE COMPLAINANT: Before the rape, but we haven't had sex after that.
X: Right, where was it?
THE COMPLAINANT: Hey.
X: Where was it?
THE COMPLAINANT: At N's flat.
X: All right.
THE COMPLAINANT: I couldn't say because I had totally forgotten the doctor because the doctor, I was scared because I thought oh shit the doctor knows everything as she examined me, so I had to tell her that we had tried it. Might spoil everything, yes (inaudible) That we tried it caus'...
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