Sukhbir Dhillon v The Crown

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Justice Elias
Judgment Date08 July 2010
Neutral Citation[2010] EWCA Crim 1577
Docket NumberCase No: 200906055/D1
Date08 July 2010

[2010] EWCA Crim 1577

Court of Appeal Criminal Division

Before: Lord Justice Elias

Mr Justice Teare

and

Mr Justice Stadlen

Case No: 200906055/D1

Between
Sukhbir Dhillon
Appellant
and
The Crown
Respondent

Ms Sarah Whitehouse for the Appellant

Mr Edmund Gritt for the Respondent

Hearing dates: 11 June 2010

Lord Justice Elias
1

On 23 October 2009 at the Crown Court at Southwark before His Honour Judge Wadsworth, the appellant was convicted by a majority of 10/2 of assault by penetration (count 1) and sexual assault (count 3). He was sentenced to 18 months' imprisonment on count 1, and 6 months' concurrent on count 3. The total sentence was therefore 18 months. As a consequence he was required to comply with the provisions of Part 2 of the Sexual Offences Act 2003 for 10 years.

2

He was acquitted of three counts; one of assault by penetration (count 2); one further count of sexual assault (count 4), and one of attempted rape (count 5). He now appeals against conviction by leave of the single judge.

3

The five counts reflected allegations of different forms of sexual activity with one complainant during the course of a single sexual encounter.

4

The counts and the activities they reflected were as follows:

Count 1, assault by penetration, allegedly involved insertion of the fingers into the vagina of the complainant.

Count 2, assault by penetration involved the alleged insertion of the fingers into the anus of the complainant.

Count 3, sexual assault, involved touching the breasts of the complaint.

Count 4, another count of sexual assault, involved allegedly licking the vaginal area of the complaint.

Count 5 was the attempted rape.

5

The appellant admitted that the activities reflected in counts 1, 3 and 4 had occurred. He denied that the activity in count 2 had occurred and as for the attempted rape, he accepted that he was willing to have consensual sex with the complainant but said that he was unable to do so since his penis was not erect.

6

The background was as follows. The complainant had stayed with the appellant at a flat owned by the company of which they were both employees. They had both been to a charity quiz at a wine bar and the complainant had asked if she could stay in the flat rather than return to her home in Hove. During the course of the evening sexual activity took place. The appellant agreed that it had (whilst denying that the particular acts covered by counts 2 and 5 had occurred) but said that it was with consent.

7

The complainant's evidence was that when they got back to the flat she was drunk and very tired but was aware of things. The appellant had offered her the bed but she had refused. He went back to the bedroom and she went to sleep. The next thing she remembered was being in the hall. The appellant was behind her. He was trying to lift and push her. She did not go to the bedroom by herself. She dug her heels in and asked what he was doing. He had his hands under her arms and he was pushing her along. He said that they should swap sleeping arrangements. They then got to the bedroom. She did not feel particularly threatened.

8

Once inside the bedroom the next thing she recalled was being face down on the bed. The appellant was moving his fingers in and out of her vagina and anus. He was using both hands. He did this more than once. She was aware at that stage that she had no knickers on. She had not taken them off and did not know what had happened to them. She was confused and did not know what was happening. He was naked.

9

She was trying to turn onto her back but he kept pushing her back. She could feel his chest and his penis. He was constantly trying to take her top off and was groping her breasts and legs. She twisted her hips around in a kneeling position, but was still face down. He then licked her vagina. She started to panic. She was disgusted and confused.

10

He got her onto her front and was on top of her and between her legs. He was in a position for sexual intercourse and was making a stabbing motion. He did not care whether he entered her vagina or anus. She shouted “Enough” two or three times. His penis was not erect and he said “Oh, flippy floppy”. She then said “'I'm fed up with this” and moved off sideways.

11

She went to the bathroom because there was a lock on the door. She then got dressed in the lounge. She sat on the sofa to put her shoes on and he came in wearing his pyjamas. He said “You're not going to be silly? I did nothing you didn't want”. She told him to leave her alone which increased the intensity of what he was saying. As she left he said “nice arse by the way” and she replied “Fuck off”.

12

The appellant's evidence about the incident was that he had offered her the bed but she had refused it and so he went into the bedroom and fell asleep. Later he woke up and realised that another couple were staying in another bedroom in the flat so he went to the complainant and told her that he thought it would be embarrassing if the other couple were to see her on the sofa. She agreed. He offered her the bedroom and this time she accepted.

13

He went to the lavatory. When he came out she was in the bed and the bedroom door was closed. He got into the bed and tickled her back. She giggled and rolled over onto her back. He pulled up her vest and fondled her breasts. He touched her over her knickers. She groaned and said “I like this”. He put his hand inside her knickers and there were more appreciative signs. She lifted her legs and took her knickers off. He then performed oral sex and penetrated her vagina with his fingers. His finger might have been on her anus but he did not penetrate it and he did not want to.

14

He began to take his shirt off and she tugged at his shorts in order to get them off. He lay on his back and she straddled him. They kissed and he performed more oral sex. He then held his penis up and said “Oh, 'I've just got a flippy floppy”. She reached around and touched his penis and made a noise as if to say he was pathetic. He was embarrassed and said that they should not be doing this and that it was awful.

15

The complainant pulled her vest down and went to the toilet. She came out and he said nothing. He then put his trousers on and went into the lounge. He asked if she was ok but she did not respond. He asked her whether she was feeling bad as well. He then said “What have I done?” and she replied “You know what you've done”. He answered “We did that”. She asked him to leave her alone and he did. He heard her leave about 10 minutes later. He went back to bed and found her knickers. He pushed them down the back of the bed. He then went to sleep until the police arrived.

16

The complainant left the flat at around 2.14 a.m. She telephoned two sisters, who were friends of hers, and they said she was distressed and crying. She recounted the experience to them but made no mention of oral sex at that time. Nor did she mention the oral sex or attempted intercourse in her first statement to the police. Again, when she saw the doctor she did not initially mention the oral sex, but did so after the doctor had asked her if they had kissed. She then said “I think he went down on me”.

17

The basis of the appeal is that there were inconsistent verdicts. It is accepted that the jury were entitled to find the appellant guilty on some counts and not others, and indeed the judge had reminded the jury that they should consider each count separately. However, it is submitted that there is a logical inconsistency in the verdicts which the jury in fact reached; convicting on counts 1 and 3, but not on count 4.

18

The basis of the submissions of Ms Whitehouse, counsel for the appellant, is as follows. There was no issue before the jury other than that the three incidents referred to in counts 1, 3 and 4 had occurred. The only issue for the jury to determine was whether the complainant had consented, or whether there was a reasonable belief in consent. She referred us to passages in the summing up which, she submits, make this plain.

19

In relation to count 1, the judge said that the appellant had agreed that he had penetrated the complainant's vagina with his finger and he told the jury “It is a fact for you to decide one way or the other, but nobody disputes it”. And then he told them that really what they had to decide was whether there was consent or reasonable belief in consent.

20

Similarly, in relation to count 3, touching the breast, he said this “He said he touched her breast. She says he touched her breast. You probably will be satisfied that he did. Question, was it consensual or not? Was there belief on his part?”

21

He then approached count 4 in essentially the same way. After referring to the oral sex, he commented that: “Both sides agree it happened, but the questions are of consent and reasonable belief in consent.”

22

Logically there were three potential routes by which the jury might have reached the different verdicts. The first was that the jury may have been unsure whether the oral sex had occurred whilst being sure that the other two sexual acts had occurred. The second was that the complainant had consented to the oral sex but not the two lesser acts identified in counts 1 and 3. The third was that the Appellant had a reasonable belief that the complainant was consenting to the oral sex but did not have any such reasonable belief with respect to the touching of the vagina and the breasts.

23

Ms Whitehouse submits that a conclusion that the oral sex might not have occurred was an impossible conclusion given that both participants had said under...

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