Neutral Citation Number: [2008] EWCA Crim 3
Case No: 200700244B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MOLD CROWN COURT
HIS HONOUR JUDGE HUDGES
T2005 7519
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/01/2008
Before :

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE HONOURABLE MR JUSTICE BEATSON
and
THE HONOURBALE MR JUSTICE BLAKE
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Between :

	R	Respondent	
	- and -		
	ROBERT MICHAEL WINTER	Appellant	

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Mr N Valios QC and Miss M Masselis (instructed by J. W. Hughes & Co) for the Appellant
Mr K H Scholz (instructed by Crown Prosecution Service) for the Respondent

Hearing dates : 18th December 2007
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Judgment

Lord Justice Longmore: 
1.	Robert Michael Winter was indicted for rape by vaginal penetration and for assault by digital penetration of the vagina.  At a second trial he was acquitted of rape but convicted of assault by digital penetration and sentenced to 4 years imprisonment.
2.	There are various grounds of appeal but the main complaint is that the defence ought to have been (but were not) allowed, pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999, to cross-examine the complainant about a relationship she was having with a man, referred to as ‘S’, at the time of the alleged incidents outside the relationship she was having with a man called Mark whom she described as her partner at the time of the events and subsequently married.
3.	The facts of the case were that on the evening of 9th December 2005 the appellant was out drinking at a number of different pubs in Llandudno including the 147 Club.  On the same evening the complainant, was also out drinking in Llandudno.  Having been to one pub, she then moved on to the 147 Club where the appellant was drinking with (among others) his friend Darren.
4.	The appellant and Darren then moved on to a pub called The Washington, just off The Parade.  The complainant also separately made her way to the Washington, arriving there at about 23.35.  At the Washington the appellant and complainant struck up a conversation with each other.  They had been slightly acquainted with each other for a number of years.
5.	At 01.05 they left the Washington together in a taxi which dropped them both at the appellant’s house at 9 Winllan Avenue, not far from Llandudno Golf Club.  The complainant agreed to go into the appellant’s house for a drink.
6.	Once inside the house the appellant and the complainant had a drink together before they both moved to the sofa in the lounge.  Whilst they were both on the sofa the appellant according to complainant removed the complainant’s knickers and penetrated her vagina with his fingers.  The complainant also said in evidence that the appellant then also penetrated her vagina with his penis.  Following this the complainant left the house carrying her knickers in her hand.
7.	Outside the appellant’s house the complainant flagged down a car which turned out to be a police car and reported to the officer that she had been raped.  The appellant was also standing outside at the time and he was identified to the officer by the complainant and as a consequence he was arrested.
8.	The complainant was examined by a forensic physician and was found to have bruises on her legs and left thigh, some of which were consistent with finger bruising and the complainant having her legs forced open.  Further bruising which appeared on her right thigh subsequent to the examination was photographed.  Her urine was found to contain 191 mgs of alcohol per 100 mls of urine (legal driving limit being 107 mgs).
9.	The appellant was not wearing any underpants or socks when arrested.  Upon examination there were found to be bruises on his upper arm which were consistent with a bite mark being made through clothing.  There were also scratch marks on his chest.  The appellant’s blood contained 142 mgs of alcohol per 100 mls of blood (legal driving limit being 80 mgs).
10.	The prosecution case in relation to the digital penetration was that the appellant penetrated the complainant’s vagina with his finger(s) without the complainant’s consent and without any reasonable belief that she so consented.  The complainant had done nothing to lead the appellant to believe that she would consent to engage in sexual acts with him.  The complainant made it physically and verbally clear that she did not consent to the appellant’s sexual acts.
11.	The defence case in relation to count 2 was that the appellant penetrated the complainant’s vagina with his fingers with her consent.  It was said that the complainant had spent the evening flirting with the appellant, had agreed to go back to his house with him, and had not resisted or expressed any displeasure at any point as the appellant engaged in sexual activity with her.
12.	According to the complainant, she started the evening by having sexual intercourse with her partner Mark, she then took the children out for something to eat and later went out with her friend Debbie.  She arrived at the Washington feeling slightly drunk but all right; she stayed for a couple of hours and then she and the appellant left together in a taxi.  The appellant said that he would get the taxi to drop the complainant off at her home.  The appellant said that he first wanted something from his own home and when the taxi got to that address both the complainant and the appellant got out and the taxi drove off.  The appellant said that he would order another taxi from his house and the complainant agreed at this point to go into the house for a drink.
13.	As they were entering the house the appellant put his hand on the complainant’s neck and pushed her.  It was not a friendly gesture and it was not done to try to steady her.  The complainant was shocked but did not say anything.  She was scared but she could not leave as the appellant was standing behind her and she did not want to upset him.
14.	They went into the dining room together, she sat at the table and the appellant poured an alcoholic drink for her.  The next thing the complainant remembered was being on the arm of the settee.  She was then pushed backwards and landed on the settee on her back.  The appellant was on top of her trying to kiss her on the mouth.  She did not let him and turned her head to one side.  She tried to push the appellant off her but was unable to.  He had his arm on her chest.  He made no attempt to remove the complainant’s skirt or boots but he did remove her knickers.  The complainant then said, “if you let me go I won’t tell anyone”.  The appellant did not respond.  She then said “No, please, don’t”.  The appellant then placed his hand onto her pubic area and penetrated her vagina with his fingers.  Following this, she said that the appellant penetrated her vagina with his penis.  That however was the count on which he was acquitted.  When the complainant was released she picked up her knickers and her bag and ran out to the road.  That was where she flagged down a car which happened to be driven by a police officer.  She told the officer that she had been raped by the appellant who was then standing at the side of the road by a bus stop.
15.	In cross-examination she denied that there was any flirtation between her and the appellant in the public house.  She sat in the back of the taxi with the appellant.  There was no flirting in the taxi either and they were not sitting close together.  She did not allow the appellant to place his hands between her legs.  She felt comfortable with the appellant and was quite happy to go into his house for a drink.  The complainant accepted that the first time that she had mentioned the appellant penetrating her with his fingers was at the first trial.  She did not know why she had not mentioned it before.  She had been muddled and upset at the police station and did not like talking about it.
16.	PC Lloyd gave evidence that he was in a marked police car when he was flagged down by the complainant about 02.50.  He stopped the car and the complainant jumped into the passenger seat.  She was hysterical and she was saying, “He raped me, he’s raped me.”  The witness asked her who she was talking about and she pointed out the appellant who was standing at a bus stop.  The witness went to speak to the appellant who was then arrested.  The complainant opened the car door and again shouted, “He raped me”.  The appellant did not respond.  
17.	In interview the appellant made no comment to the questions put to him.  At the trial, however, the appellant gave evidence and said that as he and the complainant both became increasingly drunk they started to flirt heavily together.  They were both having fun and the complainant did not rebuke him.  He left the Washington public house with the complainant.  The others in the group were going on to the West Shore Club nearer the Golf course but neither the appellant nor the complainant wanted to do that so he invited her back to his house for a drink.  She readily agreed.  Because of their mutual behaviour that evening the appellant was encouraged to think that they were going back for sex.  In the back of the taxi the appellant placed his hand on the inside of the complainant’s thigh and she did not remove it.  When they arrived at his house the appellant got the complainant a beer.  The appellant placed his hands on her legs.  They then stood up, embraced and kissed each other.  They then both went into the lounge and sat on the couch together where they kissed again.  The appellant touched the complainant’s breast and her vagina.  There was an interlude whilst the appellant removed all of his clothing.  The complainant did not remove hers.  He then penetrated her vagina with first one, and then two, fingers.  His fingers were inside her vagina for a matter of minutes.  He said that the complainant did not respond negatively and received his advances very well.  He then removed her knickers which required her assistance.  They continued to kiss and the appellant again penetrated her vagina with his finger.  The appellant became aware that due to the effects of alcohol he was unable to achieve an erection.
18.	He then said that the complainant then repeatedly bit his lip and then his arm in what was meant to be a playful manner but which caused the appellant pain.  He said, “what the fuck did you do that for, you bitch?”  He picked up his jeans and moved to the dining area and asked the complainant to leave.  As she walked past him he offered to phone for a taxi to take her home but she said that she was going to the West Shore Club.  Whilst they were together the complainant had not at any point told the appellant to stop or said, ‘no’.  He then put on his clothes without bothering to put on his underpants and made his way to the West Shore Club which was close by.  The complainant was banging on the main door to the club.  The appellant called to her and told her to come back to his house to call a taxi.  The complainant then walked into the road and flagged down a marked police car.  The appellant heard her shout, “He’s raped me.”  The appellant said, “What are you talking about?” whilst the policeman was still in the vehicle.  
19.	Brian Chapman, the taxi driver, gave evidence that he picked up the appellant and the complainant from the Washington on 9th December.  They both got into the back of the taxi and both seemed to be normal.  He was told to go to the appellant’s home address, no other address being mentioned.  He heard no conversation between the two and he saw no physical contact.  He saw them both go into the appellant’s house without anything occurring at the door to the house.
20.	The appellant’s friend, Darren, gave evidence that the appellant and the complainant were talking to each other at the Washington.  From then on they were in each other’s company for most of the night.  There was a lot of flirting between then and physical contact.  The witness felt like ‘a bit of a gooseberry’ and therefore did not remain with the appellant and complainant.  He said that they were behaving like a couple and that he did not see them leave.
Section 41 of the 1999 Act
21.	This section relevantly provides:-
“(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court –
(a)	no evidence may be adduced, and
(b)	no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give leave unless it is satisfied –
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject – matter of the charge against the accused …
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) is the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused”
Complainant’s first statement to police
22.	On 10th December the complainant had made a lengthy statement to the police.  She had described her relationship with her partner Mark as close and loving and at a later point said
“Mark and I enjoy a healthy sex life, we are devoted to each other.”
On the next day she went back to the police station and told the officer in the case that she was actively involved in a separate sexual relationship with the man to whom we have referred as ‘S’.
23.	Miss Masselis on behalf of the defendant applied (in so far as it was necessary) to the judge for leave to cross-examine the complainant about this sequence of events, in order to show that the contents of her first statement could not be relied on and thus (by inference) neither could her evidence in court.  Her principal submission was that section 41 of the 1999 Act was not engaged at all (and that her application was, therefore, unnecessary) because she was intending to ask questions about the complainant’s supposedly false statements not questions about any sexual behaviour of the complainant within section 41(1).  For this purpose she relied in R v BT and R v MH [2002] QB, R v SK [2002] EWCA Crim 1319 and R v Gulab Singh [2003] EWCA Crim 485 where cross-examination was or could have been permitted about (1) an omission to mention the indicted incident on the first appropriate occasion, (2) previous false allegations of sexual improprieties made against other men or (3) previous false statements by the complainant that she was a virgin when she, in fact, was not.  The judge rejected the submissions of Miss Masselis holding that section 41 was engaged and, since it was, section 41(4) applied so as to prohibit questions the purpose of which he held was to impugn the complainant’s credibility as a witness.
24.	Mr Valios QC, who appeared leading Miss Masselis on this appeal, submitted that the judge was wrong.  But we consider the judge was right.  In the first place the premise of the submission is that questions should have been permitted to show that the complainant’s statement about her partner Mark was false.  But we do not think they were false.  Whatever view is taken of her conduct a statement by a woman that she has a close and loving relationship and a healthy sex life with a man to whom she is devoted is not, in our judgment, to be adjudged a lie merely because she also has a sexual relationship with another man.  Even if, however, it were to be correct to call it a lie, it is a lie which only lasted for 24 hours and can hardly be called a significant lie.  It does not seem to us that an insignificant lie is a matter about which questions should be permitted if the matter falls within section 41 in the first place.
25.	More importantly, however, the matter does come within section 41 because the questions, in fact, are about the sexual behaviour of the complainant.  The questions Miss Masselis wanted to ask were designed to elicit the fact that the complainant was having a relationship with ‘S’; it is only if that is established that the first statement could be said, in any sense, to be false.  Yet the eliciting of that fact is inescapably the eliciting of the complainant’s behaviour with another man.  The question, therefore, runs straight into the statutory prohibition.  Cases in which a complainant fails to take the opportunity to make an allegation or where she has falsely made allegations about other men in the past are entirely different, since no sexual behaviour is in issue.  A false statement by a complainant that she is a virgin is perhaps more problematical, but need not be addressed in the present case.
26.	In this case, for these reasons, we consider the judge was right largely for the reasons he gave.  Nor can there be any argument that a refusal to allow questions about the earlier statement made the trial unfair.  We have already observed that, if the first statement contained a lie at all, it was a comparatively insignificant lie and corrected within 24 hours.
Complainant’s statement to appellant
27.	The second issue under this head is whether the judge should have permitted Miss Masselis to put to the complainant the fact (as the appellant alleged it to be) that, in the course of flirtatious behaviour with the appellant, she had told him that she was having a relationship with ‘S’.  This issue has to be resolved in the context that the judge, without objection from the Crown, was prepared to allow questions about and evidence of flirtatious behaviour with the appellant but, rightly in our view (see Human Wrongs by Peter Mirfield (2002) 118 LQR 20, 24), not to allow questions about and evidence of flirtatious behaviour with other men in the pub that evening.  It was submitted by Mr Valios for the appellant that the question, which Miss Masselis wished to ask, was again about a statement made by the complainant and not a question about her sexual behaviour and it was relevant for the jury to know that she had told the appellant she was having an affair with ‘S’ (regardless of the truth of the matter) since that went to his supposed belief at his flat that the complainant was willing to consent to sexual activity.  As Miss Masselis originally put it to the judge
“The defendant may have interpreted that as a green light … as regards the possibility of a sexual encounter between the two of them.”
It was also said that the purpose of the sexual flirtation with the appellant (including the assertion that she was having an affair with ‘S’) was to make ‘S’ jealous and that the jury should have had the whole of that picture.  The judge decided that evidence of the complainant’s relationship with ‘S’ and what she said about it to the appellant was nothing to do with her flirtatiousness with the defendant and refused this limb of the application.
28.	We again consider he was entitled to do so in the context of the submissions advanced to him.  In the first place the judge would be entitled to conclude that it would in this case be unreal to distinguish evidence that the complainant said she was having an affair with ‘S’ from the fact that that affair existed.  The jury would inevitably have been informed about the complainant’s sexual behaviour to use the words of section 41.  Secondly we consider that a true statement that a complainant is having an affair with X is evidence of her relationship with a man other than the accused defendant.  As such it falls into the category of relationships with other men and is thus more similar to the area of flirting with other men, questions about which were excluded by the judge, rather than the allowable area of flirtation with the appellant.  Thirdly, even if the reference to the affair with ‘S’ could be part of such flirtation with the appellant, it adds little, if anything, to the other evidence of flirtation with the appellant which was to be attested to by both the appellant and his witness Darren, albeit denied by the complainant.  Fourthly the purpose of putting to the complainant the fact that she said to the appellant that she was having an affair with ‘S’ is inevitably to elicit the fact of that affair and thus to invite the jury to conclude that, because the complainant was having an affair outside her relationship with her long-term partner, she would be more likely to consent to sexual activity with the appellant.  Miss Masselis’s “green light” is however, the first of the twin myths which McLachlin J identified (as referred to in R v A (No. 2) [2002] 2 A.C. 45 at para. 76 per Lord Hope of Craighead)) and is the very mischief to which section 41 is directed.  As O’Connor LJ observed (well before the enactment of section 41) in R v Barton (1987) 85 CARS 5 at page 13:-
“There is a difference between believing that a woman is consenting to intercourse and believing that a woman will consent if advances are made to her.”
29.	We should perhaps add for the sake of completeness that, to the extent that Mr Valios submitted that both the above limbs of argument related to belief in consent (rather than actual consent) and that he could therefore rely on sub—section 3(a) of section 41 we do not consider that that is correct.  In R v A (No. 2) [2001] EWCA Crim 4 this court held that it would be quite inappropriate to tell the jury that evidence or answers to questions about the complainant’s sexual behaviour were admissible on the issue of belief in consent, but not admissible on the issue of actual consent, see Rose LJ’s reference to Lewis Carroll, para 7.  Nothing in the decision of the House of Lords is that case suggests that that was wrong, see esp. per Lord Steyn at para 35.
Bruising
30.	It was further said that the affair with ‘S’ could have given rise to the complainant’s observed bruising on which the Crown relied as against the appellant.  But it was already established that the complainant had had sexual intercourse that very day with her regular partner whereas the last time she had had sex with ‘S’ was two or three days earlier.  So ‘S’s’ possible candidature for causing the bruising was much weaker than that of the complainant’s regular partner which was anyway before the jury.  That, moreover, did not exclude other possibilities, such as that the bruises were caused by the complainant’s children or even during her state of intoxication.  The judge was again correct to reject this submission.
Rebuttal or explanation
31.	Lastly under this lead Mr Valios submitted (as had Miss Masselis to the judge) that evidence about the affair with ‘S’ was necessary to rebut (pursuant to section 41(5) of the 1999 Act) the false picture which the complainant was about to give her in her evidence of having been at the time in a happy long term relationship with her partner which had produced three children.  It was known that the complainant was likely to give some such evidence since her relationship with her partner had emerged before the jury at the first trial.  She had then, at an abortive second trial, told the court (without prosecution counsel being aware of the fact) that before that trial she had married her long term partner.  The jury at this second trial had to be discharged because a juror fell ill but, as we understand it, the arguments and decision about admissibility took place before the complainant gave evidence before that second jury and the ruling then stood for the purpose of the trial before the third jury.  In fact the third jury were (by agreement) not informed of the subsequent marriage but were informed about the relationship the complainant had with her partner and about her three children.  That is not, in our judgment, a statement that is so misleading or incomplete that it needs to be “explained” (let alone “rebutted”) by evidence that the complainant was having an affair with another man.  Once again the judge was correct in his ruling.
Conclusion on section 41
32.	It might suffice to say that the judge had a discretion whether to allow questions or evidence about the complainant’s relationship with ‘S’ and that we see no reason to interfere with his exercise of that discretion but, since we agree with his ruling and since section 41 is not without its difficulties, we consider that we ought to say so.
33.	The real question is whether the appellant has been deprived of a fair trial by the judge’s decision to exclude the questions which Miss Masselis desired to ask.  If he was, there would be a breach of Article 6 of the European Convention of Human Rights and the conviction would then have to be quashed.  We do not consider he was so deprived.  The 24 hour omission to tell the police of the affair is a tiny part of the overall picture and, as we have already said, the statement to the appellant by the complainant that she was having an affair with ‘S’ added little if anything to the evidence of her flirtatiousness with the appellant which was before the jury in any event.
Other grounds
34.	We turn to the other grounds of appeal with the headings of (1) Distress (2) Inconsistency of verdicts (3) The application to call evidence from a man to whom we will refer as KM.
Distress
35.	The judge directed the jury that they could take account of the complainant’s distress if they were satisfied that it was genuine and that they could attach to it what weight they thought it deserved as support for the prosecution case.  Mr Valios submitted that the judge should have also said to the jury that they should be satisfied that the distress related to the commission of the alleged offence and did not arise as a result of some other cause such as regret for her consensual conduct or worry that her partner might discover what had happened.  It is true that there is authority that such further direction is desirable see e.g. R v Knight 50 C.A.R. 122 and R v Romeo [2004] C.A.R. 417 but there is no rule that this is mandatory.  In a case such as this the critical question is whether the complainant’s distress was genuine.  We reject any suggestion that the conviction is unsafe merely because the judge did not point out to the jury (what would anyway be obvious to them) that even genuine distress might arise from consensual conduct.  Common sense points of this kind may be appropriate for speeches from counsel but do not have to be underlined in every summing-up see R v Campbell [2007] C.A.R 361 para. 23.
Supposed inconsistency of verdicts
36.	This is a renewed application after refusal by the single judge.  It is said that it was inconsistent for the jury to have rejected the complainant’s account of non-consensual penile penetration but to have been sure she was right about non-consensual digital penetration, particularly since the allegation of digital penetration was made at the first trial for the first time.  It is for the appellant to show that the verdicts are inconsistent see R v Durante [1972] 1 WLR 1612.  In this context inconsistency means logical inconsistency: see the decision of this Court in Bell 1997 (unreported), G [1998] Crim L Rev, Rafferty v Rafferty [2004] EWCA Crim 968 and Hester [2007] EWCA Crim 2127.  The two most recent cases approved the observation of Buxton LJ in G’s case (at page 484) that those promoting an appeal on inconsistency should ensure that Bell’s case and G’s case are before the court and be in a position to explain why the general approach in Bell’s case should not apply.  Those cases were not before us.  Mr Valios’s submission was essentially that the two counts stood or fell together.  The authorities, however, show that a greater degree of rigour is required to get an argument based on inconsistency off the ground.
37.	We do not consider that there was any inconsistency.  The appellant had always denied any penile penetration and the jury may well not have been sure that any penile penetration took place.  But the appellant admitted digital penetration and the only issue was whether that penetration was consensual.  The verdict is not merely consistent but in fact perfectly understandable.
New evidence of KM
38.	The single judge referred the application to call this new evidence to the Full Court and said that the witness should be available.  His evidence is to the effect that he saw the complainant flirting with the appellant “very openly” and was thus confirmatory of the appellant’s own evidence and that of his friend Darren to that effect.  The witness did attend this court but the Crown did not seek to cross-examine him.  We take his evidence, therefore, at face value.  But the Crown submitted that there was no good reason put forward for its not being available at the trial and that it would not, in any event, have added anything to what was in evidence already.
39.	It appears from the appellant’s solicitor’s affidavit of 6th November 2007 that two attempts had been made to telephone the witness at the time of the first trial.  But no information is given as to the telephone number or whether it was a land line or a mobile number.  No reason is given for the failure to contact him at the time of the second trial other than to say that KM told the solicitor after the appellant’s conviction that he had not wanted to give a statement before because he was “good friends” with the complainant’s partner (now husband).  Neither the solicitor nor KM say why that situation has changed although KM did apparently say to the solicitor that he did not think that the appellant would be convicted.
40.	This is therefore a classic case of the appellant wanting a second bite and we do not think that can be allowed.  KM’s evidence was available but not used at the time of the trial.  His evidence is, in any event, only confirmatory of evidence that was in fact given.  We conclude that the considerations set out in section 23(2)(b) and (d) of the Criminal Appeals Act 1968 (to which we are required to have regard) are not fulfilled.  We have, in the circumstances, decided that the application to call new evidence should be dismissed.
Overall conclusion
41.	It follows that all the applications made by the appellant fail as do the grounds of appeal in respect of which leave was granted by the single judge.  This appeal is therefore dismissed.