Case No: 200106238Z5
Neutral Citation No: [2002] EWCA Crim 1320
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM His Honour Judge Crowther QC
Bristol Crown Court.
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 31st May 2002
Before :

LORD JUSTICE MANTELL
 MR JUSTICE FIELD
and 
 THE RECORDER OF BIRMINGHAM

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Between :
	REGINA		
	
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JAMIE LEE COLWILL		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Mr I Dixey (instructed by Douglas & Partners) for the appellant
Mr J Royce QC for the Crown
Hearing dates : 21 May 2002

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Mantell: 
1.	On 23rd August 2001 in the Crown Court at Bristol the appellant was convicted of two counts of rape, separately indicted as vaginal rape and anal rape, and one count of indecent assault. All counts in the indictment concerned events in the small hours of 23rd November 2000 when the appellant was at the home of Stacey Taylor, the complainant.  On 31st October 2001 the appellant was sentenced by the trial judge, His Honour Judge Crowther Q.C. to 6 and 7 years’ imprisonment respectively on Counts 1 and 2 to run concurrently; no separate penalty was imposed on Count 3. He now appeals against conviction by leave of the single judge.
2.	For the purposes of this appeal, the facts may be shortly reviewed. In November 2000, Stacey Taylor, then aged 17 years, was living next door to Debbie Goldsworthy and Michael Nash. The appellant, a young man of 23 years and of previous good character, met Goldsworthy and Nash; he saw Stacey in her garden and was attracted to her. Goldsworthy and Nash arranged that the appellant and Stacey should meet at their home on 22nd November 2000. They did so. By this time Stacey had moved to a flat, a drive of some 5 minutes away. After the meeting, the appellant drove Stacey to her new home; she had offered to make coffee there. According to both Goldsworthy and Nash, the appellant and Stacey left their home at about 11.30 pm; Stacey’s evidence was that they did not leave until 12.20 am.

3.	At 1.28 am that morning Stacey telephoned her friend. She was in considerable distress. She complained that she had been violently raped by the appellant. The police were informed. In evidence Stacey said that after the appellant had driven her home and stayed for some time, she hinted that he should leave. He did not do so. She went to her bedroom assuming because of the late hour that he would sleep on the sofa in her living room. A short time later he entered her bedroom and there raped her vaginally and anally several times. He then left the house.

4.	The appellant’s case in interview with the police and in evidence was that all the sexual activity of that night was with Stacey’s full consent and willing participation. He agreed that vaginal intercourse and oral sex had taken place; that was consensual. He denied that anal intercourse had occurred. It was contended on his behalf that Stacey had invented the allegation of rape; she had a history of emotional problems and was seeking attention. She had received psychiatric treatment for depression; on one occasion she had been admitted to hospital complaining of acute stomach pain, but on clinical examination nothing of significance was found to explain her complaint.  Reliance was placed upon certain factual inconsistencies between her evidence and her first complaint to the police, and the “lost 50 minutes” of consensual sexual foreplay, having regard to the evidence of Goldsworthy and Nash as to the time when the appellant and Stacey had left their home on that evening.

5.	Thus the issue for the jury was one of credibility. The prosecution contended that there was strong support for Stacey’s evidence. She was medically examined soon after the events. Dr Norfolk found a fresh tear to the rim of her anus. It was that doctor’s evidence that such a tear was consistent with an object being forced into her anus. It was more likely to occur if the intrusion was resisted and there was no lubrication. He was not of the opinion that there might have been an accidental cause of the tear, such as inadvertent pressure of the penis during an attempt to achieve consensual vaginal penetration. Dr Irvine was called on behalf of the appellant. He agreed that the anal tear was consistent with recent penetration and that such a tear was commonly found after non-consensual anal intercourse. He expressed the opinion that it was possible for such a tear to be caused inadvertently by a clumsy attempt at vaginal intercourse especially if both partners were “enthusiastic” or either was to some extent under the influence of alcohol. He agreed that a tear was more likely if the female was unwilling. It was the appellant’s evidence:

 “At all times I was gentle. I was not forceful. I did not put my penis into her anus; that is ridiculous, disgusting.”

6.	Further, the Crown relied on the evidence of Stacey’s friend Gemma who received the telephone call of complaint and who immediately went to see Stacey. Gemma described the very distressed condition of Stacey; she said that Stacey was “walking as if she had dirtied herself”.

7.	The learned trial judge dealt with all these matters in his summing-up. He gave to the jury all appropriate directions of law. Mr Dixey, counsel for the appellant here and below, concedes that the summing-up was in all respects balanced and fair. No complaint is made of it.

8.	This appeal is presented with leave of the single Judge on the single ground that the conviction is unsafe by reason of the failure of the prosecution to disclose material relating to complaints which Stacey Taylor had made to the police before trial alleging criminal conduct of Goldsworthy and Nash towards their young children which complaints, it is contended, were false and made maliciously; and, in particular, the failure of the prosecution to disclose a note made by a police officer which revealed their current adverse opinions as to the creditworthiness of Stacey. It is submitted that the opinions of Goldsworthy and Nash as to the creditworthiness of Stacey were relevant to the issues which were before the jury. Had evidence of them been placed before the jury, they may have taken a different view of her credibility.

9.	The history of these complaints to the police is as follows: on 9th August 2000 Stacey telephoned the police reporting that young Andrew Wheeler, aged 13 and son of Debbie Goldsworthy, had been excluded from his home presumably by his mother and, in a rage, was attacking the rear door with an axe. His younger sister, Samantha was inside the house with a baby sitter. The police attended. They discovered some damage to the door but were unsure that it was fresh damage. The police took no action save to warn Andrew about his conduct. He denied possession of an axe. On 26th December 2000, some 5 weeks after the events with which the jury were concerned, Stacey Taylor again telephoned the police alleging that Goldsworthy and Nash were “beating up” Andrew next door, that they were drunk, and that they had assaulted Samantha on the previous evening. The police again attended. Andrew made no complaint; Debbie Goldsworthy explained that she had been “telling off “ Andrew for his abusive behaviour to her. Some bruising was noted to the arm and thigh of Samantha. She refused to make a statement of complaint to the police. Goldsworthy and Nash denied any violence to the children. According to the contemporary note of the investigating police officer, he concluded that it was not in the public interest to instigate a prosecution. However the appropriate Social Services Department were notified of the complaint and police investigation. To them, Samantha claimed that her mother had merely slapped her in response to her bad behaviour of kicking her mother. At that time there is no reason to conclude that Goldsworthy and Nash knew that Stacey Taylor was the source of the complaints to the police. They may have suspected it; but they came to learn of that fact. Not surprisingly, they were then hostile to Stacey. They were witnesses required to attend the trial of the appellant. Save as to the time at which Stacey and the appellant left their home on 22nd November 2000, their evidence was not controversial. They informed the police before trial that whilst they were willing to attend court and give evidence according to their statements, if they were asked about Stacey’s character now “they will not give complimentary answers”. That was noted and passed to the Crown Prosecution Service. Counsel for the Crown, not Mr John Royce Q.C. who appears on this Appeal, decided that the material about the complaints made by Stacey, and the note of the attitude of Goldsworthy and Nash to her since they discovered the fact that she was the source of the complaints, need not be disclosed to the defence. In the event, Nash was not required to attend the trial; Goldsworthy was called to give evidence by the prosecution. Mr Royce Q.C. has taken the view that counsel’s decision not to disclose the material, though taken in good faith, was wrong; we are content to proceed on that basis. 

10.	Mr Dixey submits that had this material been disclosed, he would have cross-examined Goldsworthy and required the attendance of Nash at the trial to be cross-examined as to their view of creditworthiness of Stacey. Their evidence adverse to her would thus have been before the jury on the important issue of credibility. He submits that the test which we should apply in the determination of this appeal is that set out in the judgment of this Court in the case of Craven (2001) 2 Cr. App. R. 181. Latham LJ in giving judgment said at page 196, paragraph 58:

“We are entitled, as it seems to us, to consider whether the material which was withheld could have affected the jury’s verdict in the light of all the facts now known to this court. If it could have done, the conviction would be unsafe. If, on the other hand, the material that has been withheld has not, on a proper analysis of the facts known to this Court, undermined in any way the verdict of the jury, then the conviction will be safe.”
Mr Royce adopts that; we agree that such is the test to be applied by this Court. 
11.	 In essence, Mr Royce invites us to review the material now disclosed. He submits that it is plain that the opinions of Goldsworthy and Nash which they now hold as to the creditworthiness of Stacey are based solely on their contention that her complaints to the police were made maliciously. In fact, he submits, those complaints were true and, in any event,  that issue of truth or falsity of those complaints was so collateral to the issue in fact before the jury that it cannot in any way undermine the verdicts of the jury, especially having regard to the strong medical evidence adduced in support of the prosecution’s case. Mr Dixey submits that credibility of Stacey was central to the case. The opinions of Goldsworthy and Nash were admissible evidence and may well have undermined her evidence in the eyes of the jury.
12.	Although this appeal is capable of resolution upon those submissions, we feel compelled to make some observations on the question of admissibility of the evidence which Mr Dixey submits that he would have been entitled to adduce from Goldsworthy and Nash. We do so with some hesitation since the matter has not been fully argued before us. Mr Royce was prepared to concede that the opinions of the two witnesses were admissible evidence. Both counsel invited our attention to the judgment of this Court in Richardson and Longman 52 Cr. App. R. 317. In giving the judgment of the Court, Edmund-Davies L.J. having reviewed earlier authorities, said at page 323:

“1. A witness may be asked whether he has knowledge of the impugned witness’s general reputation for veracity and whether (from such knowledge) he would believe the impugned witness’s sworn testimony. 2. The witness called to impeach the credibility of another witness may also express his individual opinion (based upon his personal knowledge) as to whether the latter is to be believed upon his oath, and is not confined to giving an opinion based merely on general reputation.”
The Court further held that the impeaching witness may not give reasons for his belief unless in answer to questions of the other party. We feel bound to express our doubts whether a modern jury would be assisted by evidence of opinion by a witness the basis of which is not in any way particularised. Be that as it may, it seems to us important to recognise the context in which the issue of the admissibility of evidence concerning the reputation of a witness arises.
13.	We have found it useful in considering the limits of cross-examination of Goldsworthy and Nash in this case to remind ourselves of the analysis of this Court in the case of Funderburk (1990) 90 Cr. App.R. 466. Henry J. in giving the reserved judgment of the Court said at page 469:

“One starts with the obvious proposition that in a trial relevant evidence should be admitted and irrelevant evidence excluded. “Relevant” means relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put.
But as relevance is a matter of degree in each case, the question in reality is whether or not the evidence is or is not sufficiently relevant. For in order to keep criminal trials within bounds and to assist the jury in concentrating on what matters and not being distracted by doubts as to marginal events, it is necessary in the interests of justice to avoid multiplicity of issues where possible. In every case this is a matter for the trial judge on the evidence and on the way the case is put before him.
When one comes to cross-examination, questions in cross-examination equally have to be relevant to the issues before the court, and those issues of course include the credibility of the witness giving evidence as to those issues. But a practical distinction must be drawn between questions going to an issue before the court and questions merely going either to the credibility of the witness or to facts that are merely collateral. Where questions go solely to the credibility of the witness or to collateral facts the general rule is that answers given to such questions are final and cannot be contradicted by rebutting evidence. This is because of the requirement to avoid multiplicity of issues in the overall interests of justice.
The authorities show that the defence may call evidence contradicting that of the prosecution witnesses where their evidence:
(a)	goes to an issue in the case (that is obvious);
(b)	shows that the witness made a previous inconsistent statement relating to an issue in the case (Denman’s Act);
(c)	shows bias in the witness (Phillips (1936) 26 Cr. App. R. 17;
(d)	shows that the police are prepared to go to improper lengths to secure a conviction (Busby (1982) 75 Cr. App. R. 79;
(e)	in certain circumstances proves the witness’s previous convictions;
(f)	shows that the witness has a general reputation for untruthfulness;
(g)	shows that medical causes would have affected the reliability of his testimony.
All those categories listed, other than category (a), might be considered exceptions to the general rule as to the finality requirement of questions put on issues of credibility and collateral matters. They demonstrate the obvious proposition that a general rule designed to serve the interests of justice should not be used where so far from serving those interests it might defeat them.”
This analysis is, of course, subject to the statutory limitations on cross-examination of complainants in certain sexual offences. We observe that category (f) above is more restrictive than in the case of Richardson and Longman to which we have referred. 
14.	However, we are satisfied that the evidence which it is contended that Goldsworthy and Nash might have given about Stacey, is not within the categories of exception to the general rule referred to above. Their proposed evidence as to the creditworthiness of Stacey was not evidence of general reputation; nor was it based on their general accumulated knowledge of Stacey. It was, as Mr Dixey concedes, their reaction to the particular matter of the two complaints made by her to the police in 2000. The validity of their conclusions, and hence the assistance which they might give to the jury, depends solely on whether Stacey’s complaints were true or believed by her to be true. We conclude that in these circumstances it would have been the duty of counsel specifically to put these matters to Stacey in cross-examination. We do not consider that category (f) referred to in the case of Funderburk and the general principle referred to in Richardson and Longman are so wide as to permit evidence to be adduced of opinion as to creditworthiness of a witness based on specific narrow allegations, without putting those specific allegations to the witness whose credit is impugned. We do not doubt that cross-examination of Stacey about the complaints would have been proper as going to her credibility. In that event, we have no reason to conclude other than that she would have asserted her belief in the truth of them. Indeed, there is material in the documents now disclosed that supports her.

15.	The question is, therefore, whether, having regard to the general rule that answers given to such questions are final, evidence could have been adduced from Goldsworthy and Nash to contradict Stacey. The answer is determined by the relevance of the proposed contradictory evidence to the issues in the case. Relevance is a matter of degree; a line is to be drawn between relevant evidence and that which is collateral. That is a judgement to be made by the trial judge, bearing in mind the necessity in the interests of justice to avoid multiplicity of issues where possible. We accept that it may not be easy to draw that line in all cases, especially cases of sexual offences where credibility of the complainant is usually at the heart of the case. As Henry J. said in the case of Funderburk at page 476:

“If a fact is not collateral then clearly you can (adduce) evidence to contradict it, but the so-called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutor’s and the court’s sense of fair play rather than any philosophic or analytic process.”
16.	We have considered the cases of  S 1992 Crim.L.R. 307 a decision of this Court in which the present Lord Chief Justice presided, and James 13th March 1998, 9702785/Y4. In S, the appellant was charged with sexual offences against X. She had previously made similar allegations against B and D, facts elicited in cross-examination of her. She testified that those allegations were true. The issue before this Court on appeal was whether the trial judge was right to rule that D’s proposed evidence that X’s allegation against him was false was inadmissible. In dismissing the appeal Woolf LJ. (as he then was) said:
“The approach which S’s counsel submitted the judge should have followed would not have come within the exceptions identified in Funderburk. In the light of the nature of the enquiry upon which (the jury) would have had to embark in order to benefit from D’s evidence and the problems implicit in calling him, the judge came to the right conclusion. There has to be a balance between keeping criminal trials within bounds and not distracting the jury from the principal issue by involving them in other issues which are unsuitable for determination in the forum of the trial taking place. The interests of justice are the final determinative factor." 
It is to be noted that in the case of S the previous allegations were of the same nature as the issue in the case. No doubt D would have said, if asked: “I would not believe X’s sworn testimony” because of his contention that her specific allegation against him was false. Evidence in those terms was not within the exceptions identified in Funderburk.
17.	In the case of James, Buxton LJ. in giving the judgment of this Court, having referred to the case of S, said at page 10B:
“(The case of S) is not directly on our present point because it was concerned with whether there should be added to the exceptions against the calling of collateral evidence, further exceptions in particular sexual cases. The Court in that case did however indicate that in addition to the questions of principle, the court would have to have in mind questions of practicality, in the sense of trying to ensure that, whilst maintaining fairness, the trial did not get out of hand, nor the jury become confused by evidence and dispute on matters which were essentially collateral.”
18.	Having these observations in mind, we have no doubt that the proposed evidence of Goldsworthy and Nash fails the test of admissibility. It is truly collateral to the issue before the jury namely the allegation of rape. Sensible investigation of the truth or falsity of Stacey’s telephone complaints to the police would have involved calling the two children, the investigating police officers and the representative of the Social Services Department as to the injuries noted to Samantha. Otherwise it would have been impossible for the jury to draw any real conclusion about those matters. It would have involved the further question whether, notwithstanding that the substance of Stacey’s telephone complaints was untrue, she honestly believed them to be justified from all that which she saw and heard. It would have involved the jury embarking on an extremely difficult and complex task and, in our judgment, it would have overwhelmed the evidence against and for the appellant on the real issue in the case. The trial judge would have had to direct the jury that whether or not they concluded that the complaints were untrue, and that Stacey knew them to be untrue, that was not finally determinative of the real issue which they had to decide. The interests of justice did not require the admission of the proposed evidence.

19.	Thus, by a somewhat different route from that proposed by counsel, we are able to answer the test in the case of Craven. We do not consider that the material which was not disclosed could have affected the jury’s verdicts in the light of all the facts now known to this Court, for the simple reason that evidence based on that material would, on proper analysis and ruling of the trial judge, never have been placed before them except as a suggestion in cross-examination which would have been denied. Further, we conclude that even if the opinions of Goldsworthy and Nash had, by concession, been admitted during cross-examination, it is inconceivable that in re-examination, counsel for the prosecution, with the knowledge that he had, would not have explored the reasons for their opinions. In that event, the trial judge would have been right to exclude further investigation of this collateral issue and to direct the jury that it could not assist them to decide the credibility of Stacey on the real issue which they had to decide. On that issue, in our judgment, the evidence of Stacey was strongly supported by the medical evidence and the evidence of her discomfort when seen shortly after the event. We do not conclude that the undisclosed material in any way undermines the verdicts of the jury.

20.	Accordingly, this appeal is dismissed.