Practice and Procedure


PUBLISHED November 17, 2003

The appellant's complaints that the trial judge had been unfair to the defence in his summing up were not upheld. The trial had been fair and the convictions for rape and grievous bodily harm were safe.Appeal against conviction on two counts of rape and one count of inflicting grievous bodily harm. The appellant ('D') was sentenced to nine years' imprisonment. The allegations related to an alleged rape at D's flat after which the complainant claimed to have tried to escape through the bathroom window but fell into the basement two stories below, thus, injuring herself. D's flatmate ('H') wished to give evidence for D that he had briefly seen D and the complainant having sexual intercourse and had later taken her to hospital where she stated that she had fallen out of the window. H was unable to attend the trial to give evidence for the defence but his statement was read out in court. D argued that his conviction was unsafe as: (i) H was now able to give evidence and leave was sought to adduce his evidence orally under s.23 Criminal Appeal Act 1968; (ii) the judge wrongly made disparaging comments in his summing up about the weight to be given to H's evidence; (iii) the judge made unfair comments about the circumstances in which D adduced evidence of his previous convictions; (iv) the judge over-emphasised the prosecution case to the disadvantage of the defence and failed properly to analyse the defence case; and (v) the judge gave a majority verdict direction with inappropriate speed and thereby placed undue pressure on the jury. The judge's majority direction was given two and a half hours after the judge concluded his summing up. The judge was not available for the last two days of the hearing while the jury was out considering its verdicts and the hearing was adjourned for this period.HELD: (1) D's application to adduce fresh evidence from H was rejected. H's explanation of his failure to attend the trial was very unsatisfactory. The defence did not apply at the time for an adjournment to bring H to court, instead, it applied to have his statements read. Cross-examination of H might have undermined D's own evidence and thus it was not necessarily disadvantageous to the defence not to have adduced his evidence orally. It was difficult to see how H's oral evidence could have advanced D's case as H had little to contribute. (2) The judge gave a conventional direction as to the status of H's evidence and there was no substance in that ground. (3) The judge, when commenting on D adducing evidence of his own previous convictions, was explaining to the jury why this evidence was adduced. The judge's comment that D had been disingenuous was unfortunate but it did not affect the overall fairness of the summing up. The judge emphasised to the jury that the previous convictions were old and of a different kind to the present allegations. (4) The judge gave adequate directions as to the law in his summing up and sufficiently identified the salient issues both on the prosecution case and on the defence case. D's submission that the summing up was larded with adverse comment and unfair was rejected. (5) D's arguments on the atmosphere of pressure at the trial did not identify any instance of the conduct of the defence thereby being impeded or any tangible prejudice to D. The judge's majority direction was given earlier than was desirable but the jury clearly did not feel under any pressure and took time to deliver its verdicts after this direction (three hours later on one count and the next working day on the remaining verdicts). The delays in the interim were unfortunate but unavoidable and did not render the trial unfair or the convictions unsafe. (6) Considering the totality of D's complaints, there had been a fair trial and the convictions were not unsafe.Appeal dismissed.

[2003] EWCA Crim 3184