No: 2003/4755/D3 
Neutral Citation Number: [2004] EWCA Crim 3022
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 12 November 2004
 
B E F O R E:
 
LORD JUSTICE CLARKE 
MR JUSTICE DOUGLAS BROWN 
 
MR JUSTICE GIBBS
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R E G I N A 

-v- 

LESLIE JOHN GILL
 
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MR I WICKS appeared on behalf of the APPELLANT
MR T MOORES appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE CLARKE:  This is the judgment of the court. 
2.	The appellant is Leslie John Gill, now 41.  On 28th July 2003 at the Crown Court at Portsmouth before His Honour Judge Mackean and a jury, the appellant was convicted of rape.  He was sentenced later that day to six years' imprisonment.  He was further required to comply with the provisions of section 2 of the Sex Offenders Act 1997, namely notification to the police indefinitely.  
3.	The appellant was represented at the trial by counsel, Mr Wright.  He is represented by fresh counsel, Mr Wicks, on the hearing of this appeal.  Unfortunately counsel who represented the Crown at the trial has not represented the respondent today.  We understand that he has suffered a serious illness since the trial.  The appellant appeals against his conviction by the limited leave given by the single judge, Elias J.
4.	On 31st March 2003 the appellant and the complainant met at the home of Tony Featherstone.  The complainant had only met Tony once before and had gone to his flat with her friend Jodie.  Jodie had contacted Tony that night to ask if she could come over.  The appellant knew Tony as he was the barman from a local public house.  Tony had passed the appellant whilst he was arguing with his girlfriend and had invited him back to his flat to stop him getting arrested.  They had all spent the early hours of the morning in the living room and had then at various times gone to sleep.  
5.	It was the prosecution case that the complainant had woken up to find the appellant having sexual intercourse with her and that she had not consented to it.  She told the appellant to stop several times and he eventually did so.  She had done nothing at any point of the evening or morning to make the appellant think that she would have consented.  
6.	It was the defence case that the appellant had woken up and kissed the complainant.  She had opened her eyes and kissed him back.  He had then removed her trousers with her help and they had then tried to have sexual intercourse.  He could not gain an erection and in any event the complainant indicated that she did not want to continue and so he stopped.  Penetration did not occur.
7.	The issue for the jury was whether they were satisfied so that they were sure that penetrative sex had occurred without the complainant's consent.
8.	The sole ground of appeal is that the judge failed sufficiently to direct the jury in relation to evidence of what is known as recent complaint.  
9.	The complainant's evidence was shortly to this effect.  She had been out with friends from the middle of the afternoon.  She had moved between various pubs and a friend's, Wendy Gibson's house.  In her evidence she set out in detail the amount that she had drunk over the period -- some five pints of Fosters lager, three vodka and cokes and two bottles of Foster's Ice lager but she had also eaten a curry during the evening.  She then went to Tony Featherstone's flat at about 12.15 am with her friend Jodie.  When they got there Jodie had been pouring out vodka and cokes but could not be sure if the others were drunk.  Another man called Jamie also came to the flat later and was there for a couple of hours.  At one stage when she was sitting on the sofa, the appellant was sitting on the other end of the sofa and Tony and Jodie were sitting together in a chair.  She felt tired and so fetched a sleeping bag.  She then climbed into the sleeping bag and went to sleep on a chair.  At some point during the night she woke up feeling unwell and went to the lavatory where she was sick.  When she came back she went to sleep again at one end of sofa.  At this point Tony and Jodie were still in the living room sitting on one of the chairs.  She did not say where the appellant was.  
10.	She woke up at about 8.15 am the following morning to find the appellant on top of her with his penis inside her.  She was still on the sofa and had the sleeping bag over her.  She said that her lower clothing had been completely removed and her bra had been pushed up over her breasts.  She felt his penis thrusting inside her.  She tried to push him off and kept saying "No".  After she had said it three times the appellant moved off her.  She said that she caught a glimpse of his penis and it was erect.  She did not think that the appellant had ejaculated. She said that the appellant then stroked her under the sleeping bag and she told him to get off.  He responded by saying that she had done him a favour and added that he was going to be late for work.  He got up, dressed himself and left.  She did not remember asking the appellant for sex and had not agreed to it.  She could not remember any kissing or cuddling before they had both gone to sleep.  She had done nothing to show the appellant that she wanted to have sexual intercourse with him.
11.	We now come to her evidence of distress and complaint.  She said that she was very distressed and was crying.  She looked into Tony's room and tried to wake Jodie but could not.  She said that she then telephoned her friend Tracey, told her what had happened and asked her to pick her up.  She was picked up by her friend and then taken to the police station.  
12.	In cross-examination she denied that she had been sick due to the amount she had had to drink.  She denied being drunk either in the evening or the morning after.  She did not accept that heavy petting had gone on between Tony and Jodie in the evening when they had been in the living room.  She said she had gone straight to sleep and had not made eyes at the appellant at any point.  She had got into the sleeping bag and gone to sleep in the armchair, waking later to be sick before going back to sleep on the sofa.  She agreed that there had been a time when she was awake and on the sofa with the appellant earlier in the evening, but this had been before she had gone to get the sleeping bag.  She denied that she had given him any kind of look to suggest that she was attracted to him.  She denied putting her legs on the appellant.  She was cross-examined about the contents of her first statement, to which we need not refer.  
13.	As to the complaints, she accepted that it had been Tracey's idea to go to the police as initially she had not wanted to.  She said there was no question of her being so drunk.  She denied that she accepted the appellant's advances and then changed her mind as time went on.  She could not comment on the appellant kissing her or fondling her breasts, or whether she kissed him back, as she had been asleep.  She denied giving him any assistance to remove her trousers or underwear.  She did not think that he had ejaculated but was clear that penetration occurred.  She had said "no" to the appellant three times before he stopped.  She was then asked about the text messages she had sent to Jodie, to which we will refer in a moment.  She did not remember sending the messages.
14.	Jodie gave evidence that she had met the complainant at 3.00 pm in a public house the previous day and that they had gone on to a friend's house.  They had then met up later at Wendy Gibson's house.  They had a couple of drinks, went out again, had another drink and then went back to Wendy's house where they had three more vodka and cokes and something to eat.  She said they went to Tony Featherstone's flat at about 1.00 am or 2.00 am.  She took a part-consumed 1.5 litre bottle of vodka which went into circulation when they arrived.  She thought they had all drunk some of it.  She said the complainant sat on the sofa to start with and then moved on to a chair where she fell asleep with a sleeping bag covering her.  Jodie had then fallen asleep herself while on Tony's lap and had then found that he had left her and gone to bed.  She had woken Tony at about 4.40 am and they went for a drive.  They got back between 6.00 and 7.00.  She did not go into the living room but could see through the door that the complainant was lying on one side of the sofa with the appellant on the other.  The appellant's head was by the complainant's feet.  The sleeping bag was over the complainant and she could see that she was wearing the t-shirt she had been wearing all evening.  She then went to bed in Tony's bed and woke between 9.00 am and 10.00 am to find the text messages on her mobile phone from the complainant.  The text messages said: "Who was that bloke's name who was there last night?" and "I am at the pig station getting him done for rape." 
15.	In cross-examination she denied that she had been Tony's girlfriend or that any petting or kissing had taken place.  She thought there had been just general chatting.  She said the complainant had fallen asleep first.  When she looked into the living room earlier the following morning she said that she had not seen the appellant and the complainant cuddling.  She thought the complainant had had a couple of vodkas at their friend's house, but she did recall being woken up by the complainant in the morning.  She did not tell the police about it because she had forgotten.
16.	There was evidence from Tracey, who said that she received a text message on the morning of 1st April from the complainant saying that she thought she had been raped.  She telephoned the complainant and was told what had happened.  They agreed to meet up and Tracey and her boyfriend went to collect her.  She said the complainant was upset and crying and so she decided to take the complainant to the police station.  She had tried to calm her down for the whole of the journey to the police station but she was still crying.  She stopped eventually.  She agreed in cross-examination that it had been her decision, that is Tracey's decision, to go to the police station.  
17.	There was other evidence from a police officer to which we need not refer.  There was also some medical evidence.  Dr Peters examined the complainant, who had not bathed or washed.  He noted that she displayed no signs of injury or bruising.  He took intimate samples from the complainant in an effort to ascertain whether penetration had occurred.  A doctor, Julian Isaac, had examined the swabs taken from both parties.  There were no traces of semen on the complainant's vaginal swabs, nor was there any trace of the complainant's cellular material on the swabs taken from the appellant's penis.  He concluded that there was no evidence that penetration had occurred, although he noted that the appellant's swabs were not taken until 48 hours after the alleged offence and that vaginal intercourse can take place without ejaculation and the transfer of semen.   
18.	An analysis of the complainant's blood sample detected no trace of alcohol, the sample being taken at 3.00 pm on 1st April.  
19.	In interview the appellant initially said that he could not be sure if penetration had occurred, but said that he was not able to manage an erection.  He gave an account which suggested that he had been on top of the complainant.  He maintained that he thought she was consenting.
20.	The appellant gave evidence.  His evidence shows the sharp conflicts of evidence between the complainant and himself.  He was not of course able to give evidence directly relevant to the issues of complaint in this appeal.  He described what he had done the night before.  He had gone out alone and drunk three pints of beer in a public house.  He had gone back to his girlfriend's house where there was a further argument.  She refused to let him in.  He later went to Tony Featherstone's flat and said that after 30 minutes the complainant and Jodie arrived, one of them bringing a large bottle of vodka.  At that point the appellant said that he was sitting at the end of the sofa and the complainant was sitting at the other end.  Jodie was pouring the drinks.  He said that he drank one full glass of vodka and coke and was halfway through another but did not finish it.  He could not recall whether the complainant had been drinking.  He said the two of them were talking for a time and the atmosphere was friendly.  He said that Jodie had been kissing Tony and he assumed that she was his girlfriend.  There had been chatting between them all and at one stage he had looked up to see that the complainant was looking at him and smiling from the other side of the room, but he did nothing to respond to her advances.  
21.	He eventually went to sleep on the sofa leaving the complainant asleep on a chair on the other side of the room. He woke up later on.  By that time Jodie and Tony were no longer there, but the complainant was on the sofa.  The complainant was laid out with her legs over his legs.  As he was uncomfortable he got under the sleeping bag and settled down again and went to sleep.  He was lying next to the complainant and when he woke again he was cuddled into her with his arm over the top of her.  He lent forward and kissed her.  She opened her eyes and he kissed her a further two or three times.  She then kissed him back.  He started to fondle her breasts, first outside her clothing and then he put his hands underneath her bra and fondled her breasts.  He then pushed her bra over the top.  He said that she was awake and did nothing to indicate that she was not consenting and returned his kisses.  He then moved his hand down to the area of her vagina and started to remove her trousers.  Her underwear came off at the same time and she lifted her legs to help him take her clothing off.  He fondled her vagina and then started to undo his own trousers.  At that point he realised that he did not have a proper erection and his thoughts moved to his girlfriend.  The complainant started to look shy and leaned forward to say no.  She had only said it twice and as soon as she made her feelings clear he stopped what he was doing and got up off the sofa.  He said that he had not at any point had a proper erection.  At this point he said that she was doing him a favour because he had not done the dirty on his fiancee.  He then asked the complainant if she was okay.  She nodded and he left.  
22.	He was cross-examined in some detail.  He accepted that he had lied about what he had done over the weekend.  It is not necessary for us to review the cross-examination in any detail.  In essence he denied that the complainant's evidence was true. 
23.	Mr Wicks' submissions in support of this appeal depend upon the failure of the judge to give the jury any specific direction in relation to the complaints which were made by the complainant.  It is not in dispute that the chronology was essentially as follows.  The complainant first looked into Tony Featherstone's bedroom where Jodie was asleep on the bed with him and tried to wake them up, but there was no response.  She then sent a text to Tracey which said "I think I've been raped".  Tracey then telephoned her back and they arranged to meet.  There was no evidence of any detailed complaint in that conversation.  It was a short telephone conversation.  As a result of that telephone conversation, Tracey and her partner collected the complainant in their car from the bus stop outside the Featherstone flat.  Tracey's evidence, as we have already indicated, was that the complainant was upset and crying when they arrived and explained what she had said had happened.  It was then Tracey who decided to take her on to the police station.  Tracey said that she tried to calm her down on the way to the police station but she was still crying.  Then when she was at the police station she sent Jodie the text message which we have already quoted.  That was the one in which she said "Who was that bloke's name who was there last night?  I'm at the pig station getting him done for rape."  
24.	All that evidence was put before the jury.  Although we are somewhat hampered in this appeal by the fact that neither counsel was present at the trial, it appears that counsel for the defence wanted the first text message, that is the one to Tracey, put before the jury because it simply said: "I think I've been raped."  It appears that some arrangement was reached between counsel to the effect that the jury would be told that she had subsequently said generally what had happened without giving any details.  It is far from clear to us how it was that that agreement was reached, if agreement it was.  
25.	It appears to us that the evidence of complaint was only admissible as evidence before the jury, not simply of the fact of the complaint but of the contents of the complaints, as supporting the account given by the complainant.  That is, it was only admissible as support for her credibility on the footing that the complaint and indeed the distress were consistent with her evidence.  Moreover it is only consistent if it is recent complaint.  The authorities show that complaint other than recent complaint is not admissible at all.  
26.	Mr Wicks submits that the authorities clearly establish the proposition that where evidence of recent complaint is put before the jury in a case of this kind, it is the duty of the judge to direct the jury along these lines, and we take this quotation from the standard Judicial Studies Board direction.  It is broadly in these terms: 
"You have heard evidence that shortly after this alleged incident X made a complaint to Y.  This is not evidence as to what actually happened between X and the defendant.  Y was not present, and did not see what happened between them.  
It is evidence which you are entitled to consider, because it may help you to decide whether or not X has told you the truth. [The prosecution say that her complaint is consistent with her account, and therefore she is more likely to be truthful.  On the other hand the defence say...] It is for you to decide whether the evidence of this complaint helps you to reach a decision, but it is important that you should understand that the complaint is not independent evidence of what happened between X and the defendant, and it therefore cannot of itself prove that the complaint is true." 
No such direction was given by the judge in this case.  
27.	Counsel who appeared for the defendant at the trial accepts that he did not invite the judge to give such a direction and it appears that counsel for the Crown cannot have done so either.  That is a great pity.  But the fact remains that no such direction was given.  
28.	The importance of such a direction has been recently emphasised in the case of S [2004] EWCA Crim. 1320 -- see the judgment of Thomas LJ giving the judgment of the court at paragraphs 29 to 34.  We refer only to paragraph 29 and 34.  In paragraph 29 the court said: 
"29. If the evidence is admissible (as it was in this case), then it is for the jury, properly directed, to consider the whole of the circumstances relating to the contemporaneous complaint in determining whether the evidence of the complaint, on their view of the witness giving that evidence, supports the complainant's evidence and what weight they consider should be attached to it in their assessment of the credit of the complainant."  
And then in paragraph 34, the court said:
"34. It is, as we have observed in paragraph 32, important for the judge to direct the jury fully on the use the jury may make of the complaint; R v Islam [1999] 1 Cr. App. R. 22.  The Judicial Studies Board have provided a specimen direction. In cases where there is an obvious inconsistency, it will be very important for the judge to make clear to the jury the extent and significance of the inconsistency, as the trial judge did in Braye-Jones. He should also draw to the jury's attention any reason given for the inconsistency and tell them that it is for them to take all these matters into account in deciding whether the complainant was telling the truth." 
29.	In R v Islam, Buxton LJ, in giving the judgment of the court, said this at page 28:
"It is a matter of law, not of judgment or discretion, that complaint evidence has only the limited effect set out above.  In those circumstances it is in our view essential that the jury should be told by the judge of the very limited effect that they are permitted to give to it.  Without such a direction, there is every danger of the jury thinking, as on one view might be a commonsense reaction, that such evidence is indeed further evidence of the truth of the complaints, rather than being of, limited, assistance in assessing the veracity of the complainer. Certainly, there is no reason at all to think that the jury, without direction on the point, will realise for themselves that evidence that they have heard, no differently from other evidence, has this odd and difficult status.  Particularly in a case such as the present, which turned and word against word, it is difficult to feel confident in the safety of a conviction when the true legal status of part of the evidence has not been made clear to the jury." ]
30.	In our judgment such a direction should have been given on the facts of this case.  Mr Moores has submitted that this complaint was so recent that it should not be treated as a classic or recent complaint but should simply be treated as part of the facts of the case.  We are not however able to accept that submission.  It appears to us that there is great force in Mr Wicks' submission that the more recent the complaint the more important the direction identified by Buxton LJ.  
31.	We have considered whether, notwithstanding the absence of the direction, this conviction is nevertheless safe.  We recognise that the law might have been that it was not necessary to give such a direction but, as in Islam, this case depended entirely upon the credibility of the complainant as compared with the credibility of the appellant.  It is not a case in which there is any other support for the Crown case.  There is an absence of forensic evidence and the like.  In these circumstances we do not feel able to say that the conviction is safe notwithstanding the misdirection.  It follows that while we quite understand the distress that this decision may cause, it follows that this conviction must be quashed.  
32.	The next question therefore is whether we should order a retrial.  We have obviously considered this and we can see that the public interest might require a retrial.  I do not know whether you have any instructions on this point. 
33.	MR MOORES:  My Lord, I do.  The complainant has been contacted and kept abreast of developments.  Her position is that while she is not keen to repeat the exercise of giving evidence she recognises that, in the light of this decision, she should and is willing to do so.  The Crown judge that it is in the public interest for there to be a retrial and for a properly directed jury to consider the evidence that was available on the last occasion. 
34.	LORD JUSTICE CLARKE:  Thank you.  
35.	MR WICKS:  I think I can say nothing as to public interest, but I invite your Lordships to have regard to the fact that of course Mr Gill has paid the penalty in relation to this offence of having been in custody for some 16 months and in effect he has been kept geographically a long way away from those nearest and dearest to him. 
36.	LORD JUSTICE CLARKE:  Thank you.  We had already considered in principle whether we would order a retrial.  We have reached the conclusion that it is in the public interest to order a retrial.  We understand Mr Wicks' points but we nevertheless take the view that a retrial is appropriate.  It follows that we allow the appeal, we quash the conviction, we direct that a fresh indictment be preferred, we direct that the appellant be re-arraigned on the fresh indictment within two months and we hope that a retrial can take place as soon as reasonably practicable.  
37.	MR WICKS:  My Lord, may I address your Lordship on the question of the defendant's further remaining in custody or being released on bail? 
38.	LORD JUSTICE CLARKE:  Certainly.  What was position before?  
39.	MR WICKS:  He was on bail, as I am instructed, throughout his trial.  I think there were the usual conditions not to contact the victim directly or indirectly.  As your Lordships will have noted there are members of his family present in court.  I understand that there are numerous different addresses available to him as residences should he be released on bail.  It is my understanding that he conducted himself in an exemplary fashion throughout the period for which he was on bail pending the original trial, and I would invite your Lordships to say that in the circumstances now it would be proper for him to be returned to that position pending the outcome of any retrial. 
40.	LORD JUSTICE CLARKE:  Where would he live?  
41.	MR WICKS:  May I take specific instructions? 
42.	LORD JUSTICE CLARKE:  Yes. You take instructions while I ask Mr Moore whether the Crown has any objection to bail.
43.	MR MOORES:  My Lord, I do not have objection in principle for the Crown but I would ask for conditions that none of the civilian prosecution witnesses be contacted in any manner whatsoever, and also ideally for a condition of residence which would mean that the defendant is not living in the Gosport area, so that there is no risk of him coming into accidental contact. 
44.	LORD JUSTICE CLARKE:  We will see what the practicalities of that are.  Mr Wicks, what was his condition of residence before?  Was there a condition of residence before?
45.	MR WICKS:  My Lord, the indication seems to be that there was not a condition of residence.  I do not have a bail document from the original papers.  Regrettably many papers were sent to me from the original solicitors but I am afraid I do not have that.  There is an address in Hayling Island, which is a PO9 postcode, 34 North Shore Road, Hayling Island.. 
46.	MR MOORES:  Hayling Island is a little way away.  If he were to reside on Hayling Island and there was a general condition not to -- 
47.	LORD JUSTICE CLARKE:  Then we will grant bail on terms that he does not contact any of the civilian prosecution witnesses and on terms that he reside at 34 North Shore Road, Hayling Island.  Very well.  The second condition will be that he reside at that address, and also that he surrender at Portsmouth Crown court or whatever the relevant Crown Court is for the purpose of rearraignment.  Does the appellant need a representation order for the retrial or is he privately funded?  
48.	MR WICKS:  He will need a representation order.  
49.	LORD JUSTICE CLARKE:  Has he had a representation order throughout?  
50.	MR WICKS:  My Lord, yes, the representation order was amended for those that instruct me for myself. 
51.	LORD JUSTICE CLARKE:  Apart from that, at the trial he had a representation order, did he?  
52.	MR WICKS:  My Lord, yes. 
53.	LORD JUSTICE CLARKE:  Then we grant such a representation order for the retrial.  Thank you very much.