Neutral Citation Number:
[2016] EWCA Crim 1631
Case No:
201503078 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday 14 October 2016
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE GREEN
HIS HONOUR JUDGE AUBREY
(Sitting as a Judge of the CACD)
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R E G I N A
V
CALVIN CHAPMAN
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Computer-Aided Transcript of the Stenograph Notes of
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Mr J Hedworth
appeared on behalf of the
Appellant
The
Crown
did not appear and was not represented
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J U D G M E N T (Approved)
MR JUSTICE GREEN:
1.
There is before the court a renewed application for leave to appeal conviction. On 12th June 2015 the applicant was convicted of two counts of rape (counts 7 and 8) and one of dangerous driving (count 1). On 28th September 2015 he was sentenced to nine years' imprisonment on counts 7 and 8 and nine months' imprisonment on count 1 to be served concurrently. The applicant was acquitted of two counts of assault by the jury upon the direction of the judge, one count of assault by penetration and two further counts of rape. The application for permission to appeal against sentence and conviction was refused by the single judge. The applicant now renews his application for leave to appeal against conviction on counts 7 and 8 only.
2.
The provisions of the Sexual Offences (Amendment) Act 1990 apply to this offence. Where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. That prohibition remains. In this judgment we anonymise the identity of the victim accordingly.
3.
The facts relating to the dangerous driving were as follows. The complainant explained that a few weeks prior to the rape the applicant was driving her home. During the journey he accused her of being with somebody else. As the complainant exited the vehicle, the applicant reversed the car so that the door hit her and she fell over. As she lifted the child out of the back the car went forward and the door caught the child's leg.
4.
The facts relating to counts 7 and 8 may be stated shortly. On 18th June 2014 the complainant contacted the police and explained that she had been raped by the applicant. The couple had been in a relationship for approximately 12 months. At the time of the incident the complainant was seven months pregnant with the applicant's child. On the night of the offence the complainant informed the applicant that she did not wish to have sex with him as it was uncomfortable. She had rebuffed his sexual advances and they had argued.
5.
On the morning of 18th June the complainant awoke to find that the applicant was penetrating her vagina. She told him to stop and pushed him away. Throughout, she repeatedly told him to stop. The prosecution relied upon a variety of different pieces of evidence. First, the evidence of the complainant herself. Second, evidence of the complainant's distress when she was collected from the applicant's address. Third, evidence of recent complaints to a friend and to her mother. Fourth, text messages between the applicant and the complainant subsequent to the incident during which the applicant appears to admit the rape. Fifth, other messages passing between the applicant and the complainant. Sixth, text messages between the applicant and the complainant's mother on the morning after the alleged assault.
6.
By way of illustration, there were before the court the text messages passing between the applicant and the complainant in which the complainant persistently over an extended period demanded an apology from the applicant for what she explicitly stated to be rape. In the course of this extended exchange the applicant apologised and in response to demands from the complainant that he acknowledge that he had raped her, in effect conceded that this is what had happened.
7.
The defence case was that the sexual activity had occurred but that it had been consensual. The only question therefore for the jury was one of consent.
8.
In the course of the trial, counsel for the applicant applied, pursuant to
section 41
of the
Youth Justice and Criminal Evidence Act 1999
, for permission to question the complainant about, amongst other things, sexual activity occurring some seven months after the alleged rape which was said to be consensual. The judge in a careful ruling rejected the application. He accepted that in principle it was open to him to permit questioning about these incidents. However, he refused permission for the following reasons. First, he concluded that the incidents in issue were not proximate in time to the alleged rape, being seven months afterwards. Second, the incidents were not relevant to the issues before the jury which were largely self-contained. Third, there was evidence that at the time of the later sexual activity the complainant was in a state of confusion and she was not sure whether she loved the applicant or not despite what she was still alleging against him. The judge was of the view that to permit questioning about these incidents risked reinforcing the stereotypical view about the manner in which victims of rape and alleged perpetrators of rape behave towards each other after an alleged sexual assault. Fourth, the judge was of the view that the only purpose of the cross-examination upon these incidents was to impugn the credibility of the complainant by reference to post-rape consensual activity. The object of the question would be to suggest that the earlier incident was consensual and that therefore the complainant was lying.
9.
For all those reasons, the judge concluded that no cross-examination should occur in relation to these matters. He did however permit evidence to be tendered that the complainant spent time with the applicant subsequently in the sense that they had met and that there had been occasions when they were on friendly terms. However, that questioning was not permitted to extend to sexual activity. The judge considered that this was necessary to ensure, as he put it, "some balance to the evidence which has been produced from the text exchanges."
10.
In our judgment, the ruling of the judge was entirely correct. We are reinforced in our conclusion by points made in the Respondent's Notice to the effect that the argument of the applicant was that it was a matter of common sense that no victim of serious sexual assault would subsequently instigate and engage in consensual intercourse with their attacker. This approach does indeed strike at the stereotypical and potentially false view of how a rape victim ought to behave in relation to a perpetrator, in cases where there is a complex relationship between the defendant and the victim.
11.
For all of these reasons we reject the renewed application for permission to appeal conviction.