Neutral Citation Number: [2006] EWCA Crim 3120
Case No: 200404115D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CRROWN COURT AT BLACKFRIARS
(JUDGE MARTINEAU)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/12/2006
Before:

LORD JUSTICE SCOTT BAKER
MR JUSTICE DAVID STEEL
and
HIS HONOUR JUDGE LORAINE-SMITH SITTING AS A JUDGE OF THE COURT OF APPEAL, CRIMINAL DIVISION
- - - - - - - - - - - - - - - - - - - - -
Between:

	REGINA	Respondent	
	- and -		
	NAVEED SOROYA	Appellant	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Michael Mansfield Q.C. and Mr Joel Bennathan Q.C. (instructed by Saunders Solicitors) for the Appellant
Mr Victor Temple Q.C. and Mr P. M. Grieves-Smith (instructed by The Crown Prosecution Service) for the Respondent

Hearing dates: 26/27 October 2006
- - - - - - - - - - - - - - - - - - - - -
REASONS FOR DECISION
Lord Justice Scott Baker: 
1.	These are the court’s reasons for dismissing the appellant’s appeal against conviction, which we did on 27 October 2006. The appellant, Naveed Soroya, was convicted in the Crown Court at Blackfriars on 22 June 2004 before Judge Martineau and a jury by a majority of 10 to 2 of one count of rape. He was acquitted of indecently assaulting the same complainant two days before the rape. He was sentenced to 6 years imprisonment, ordered to pay £4,338 towards the costs of the prosecution and made the subject of the notification procedures under the Sexual Offences Act 2003. 
2.	The ground of appeal advanced by Mr Michael Mansfield Q.C., who has appeared for the appellant, was that the complainant had given a false account of an earlier attack on her of a sexual nature. Mr Mansfield sought to support this ground by the admission of fresh evidence. He submitted, that in a case where the conviction depended almost entirely on the complainant’s credibility, this new material rendered the conviction unsafe. There is another ground on which, having heard argument, we refused leave to appeal. This is that the complainant’s actions since the trial raise doubts about her credibility and consequently the safety of the conviction. This has two limbs (a) the contradictory accounts she had given during the exploration of her claim of the ‘earlier attack’ and (b) her personal conduct after the alleged rape in swiftly forming a relationship with a wealthy employer many years her senior in circumstances similar to those in which she met the appellant. For completeness we mention that on 12 July 2006 another division of this court presided over by Sir Igor Judge P. dismissed a quite separate ground of appeal relating to s.41 of the Youth Justice and Criminal Evidence Act 1999.
Facts.
3.	The complainant was a young Polish woman then aged 19 who had recently arrived in the United Kingdom. She was looking for work but was hampered by her lack of a work permit which was required at that time. She replied to an advertisement that had been placed in a Polish newspaper and as a result arranged to meet the appellant. The appellant was involved in hotel management and he offered her cleaning work in a hotel. They met to discuss the work the same day at a flat belonging to the appellant’s brother, and on two subsequent occasions namely, Tuesday 22 April and Thursday 24 April 2003 at the same flat. 
4.	The Crown’s case was the appellant made unwanted advances at their first meeting whilst holding out offers of cleaning work; that she left the meeting intending to find other work but contacted the appellant about a week later when she failed to do so. She then agreed to meet him at the flat to provide her with details of the hotel at which she was to work. On Tuesday 22 April, which was the second meeting at the flat, he indecently assaulted her by touching her buttocks, trying to kiss her and touching her breasts over her bra without her consent. This was the allegation of which he was acquitted. As to the rape, her evidence was that it occurred two days later on Thursday 24 April when she went to collect the £100 wages that he owed her. He raped her and then gave her only £50.
5.	The defence case was that the complainant had made it clear from the outset that she was prepared to have a sexual relationship with him. There was no dispute that he touched her on the second visit and had sexual intercourse on the third. However, it was consensual. The appellant alleged that after they had sex the complainant wanted more money then she was owed and threatened to cause trouble when he refused to give it to her. The appellant’s case at trial included the suggestion that she may have pursued a sexual relationship with him to obtain money, accommodation a job or schooling. 
6.	Mr Mansfield made the point that it was not a case where the evidence against the appellant was overwhelming. The case turned on the credibility of the complainant. She was not physically injured or threatened and needed to explain why she had put up no obvious resistance and why she had returned to the flat two days after being indecently assaulted there.
7.	The complainant had a psychiatric history and the prosecution adduced evidence from a Polish psychiatrist, Dr Naumiuk that she suffered from a serious neurotic condition known as a ‘conversional disorder.’ This led to other reports being obtained as to the complainant’s reliability and the extent to which she might be abnormally passive in the face of stressful circumstances. 
8.	In the complainant’s witness statement to the police prepared before the trial there appeared  the following passage:
“I was once attacked by a man in the past, because I fought back my attacker became so angry that I received serious injuries.”
9.	In a report dated 2 June 2004 prepared for the defence following an interview with the complainant on 20 May 2004 i.e. before the trial, a consultant forensic psychiatrist Dr Claire Gaskin recorded that when the complainant started at secondary school at the age of 15, things changed and she was gradually aware of losing her confidence in certain situations. She started to mix with a group of people who went to parties in order to build her confidence. Dr Gaskin said:
“(The complainant) told me that at one of these parties there had been an incident where a boy, two years older than her, had approached her and appeared to be showing an interest in her. She said that they got on well initially and she had been flattered by his attention. She told me that she liked him and knew him a little from school. (The complainant) told me that this boy had tried to touch her sexually and she had told him that she did not want him to do so. She said that this boy had ripped her blouse open. (The complainant) said that she thought that she had suffered a “panic attack” during this incident and subsequently fainted. She said she had woken up on the bathroom floor and had some physical injuries, bruises etc. She was not aware of exactly what had happened to her, although it was clear that she had not been raped during the incident.”
10.	Dr Naumiuk made a statement dated 16 December 2003. The prosecution read his statement at the trial. He had travelled to London and was available to give evidence if the defence wished to cross-examine him. He is a child and adolescent psychiatrist and had treated the complainant at Zagorze in Poland from 22 January 2001. Included in his statement, but not read at the trial, was reference to his having no recollection of the complainant talking about any assault in Poland which would have caused any physical or mental injuries to her. Dr Gaskin in an earlier report of 28 April 2004, having seen the complainant’s police statement and her reference to having sustained “serious injuries,” said that the traumatic incident said to have caused them was not documented in the notes she had seen from Poland. She said :
“It may be useful to consider asking for any documentation relating to the ‘serious injuries’ that the complainant reports she received in Poland, as the victim of a serious assault, as I suspect this may have retriggered her disorder if it occurred. This may need to be explored with (the complainant) if felt relevant to the current allegations”.  
11.	There was, accordingly, material available to the defence at the time of the trial alerting them to the possibility of making further investigations that might be of assistance. Further, Dr Naumiuk could have been cross-examined to establish that there was no record of any earlier assault in Poland. 
12.	In this respect it is revealing to look at the history of the appellant’s lawyers’ approach in the run up to the trial as revealed in various letters and attendance notes recently disclosed. On 13 August 2003 an attendance note records that the complainant said she suffered from panic attacks and had been treated in Zagorze in an institute for psychiatric disorders. 
13.	Further inquiries were made of the Crown Prosecution Service about medical information relating to the complainant on 29 September 2003.
14.	On 24 February 2004 the medical notes from Poland were studied in detail with a view to instructing an expert. A further review took place the following day with a view to a conference with the appellant on 27 February. On 27 February the appellant’s solicitors wrote to the Legal Services Commission seeking authority to instruct Dr Claire Gaskin to review the complainant’s medical records as they went to the issue whether the appellant reasonably believed the complainant was consenting to sexual intercourse because her account was she was not able to fight back as she froze due to psychiatric illness.
15.	Dr Gaskin’s report of 28 April 2004 was sent to the appellant on 30 April. It was in this document (paragraph 5) that Dr Gaskin suggested pursuing documentation relating to the ‘serious injuries’ referred to by the complainant in her witness statement.
16.	On 5 May 2004 the report was discussed in a half hour conference between the appellant’s solicitors and counsel and on the following day his solicitor discussed the report with Dr Gaskin. There is a reference in the note of it to the possibility that “the attack a few years ago changed her (the complainant’s) condition.”  On 7 May the appellant’s solicitor re-read Dr Gaskin’s report prior to a conference with counsel. Three days later the material was considered again and a further letter of instruction was sent to Dr Gaskin.
17.	Dr Gaskin’s further report was dated 2 June 2004 and was considered by the appellant’s solicitor the following day over a period of an hour. On the same day the solicitor had an 18 minute discussion with Dr Gaskin. A note of it records that the solicitor had spoken to Dr Gaskin and the complainant was “nice, believable”.
18.	Also available at the trial, although he was not called by either side, was a report prepared by Dr Taylor for the prosecution dated 3 June 2004. Dr Taylor is another consultant forensic psychiatrist. He recorded that the complainant had told him she had been living with her partner in Acton since early in the year and that they wanted to make a future for their baby; that she had no current health problems and was not receiving any psychiatric treatment. She also told him she was a victim of a previous attack in Poland aged about 16 and that this was an attack by a man she had met at a party. He wanted to have sexual intercourse with her but she resisted. There was a fight during which she was hurt but not raped. Dr Taylor said there was nothing in the history or psychiatric examination, as confirmed by detailed contemporaneous psychiatric records, to suggest the complainant would have any psychiatric or psychological reason for giving an unreliable account to the police.
19.	It is apparent from this material that a good deal of care and thought went into the way in which the appellant’s case at trial should be handled. 
20.	On 23 June, the day after conviction, an e-mail recorded the appellant’s discontent which: “seemed to focus on failure to use all the complainant’s psychiatric history and call our medical experts, when the prosecution had done so.” It also recorded that “there was reference to a previous attack in Poland, but no details were explored.” Further, the e-mail records that: “perhaps we could have made more of the fact that for someone so traumatised, the complainant started a new relationship with someone possibly of Asian/Arab origin, and had a  baby in very short order.”
21.	This e-mail emphasises the care that has been given to the appellant’s case and that the appellant’s advisors had the opportunity to investigate further the appellant’s background in Poland. It also illustrates that the appellant was well aware of the complainant’s new relationship well before the trial. Mr Mansfield submits that only the barest outline of the complainant’s new relationship was known to the appellant at the time of the trial. But it seems to us the important fact is that it was known about.
22.	The defence team at the trial was asked whether any consideration was given to an attack on the truthfulness of the earlier complaint, bearing in mind what Dr Naumiuk had said and, if it was, why such an attack was not mounted. Counsel’s answer was that they did not consider that legal aid would be granted for a speculative search into to the earlier complaint in Poland, and: “Having lost the argument to exclude Dr Naumiuk’s evidence, we did not consider (the appellant’s) defence would be aided by causing the doctor to be called to give live evidence”.
23.	Counsel could not recall whether she noted the passage in Dr Naumiuk’s report that he could not remember the complainant speaking of any assault that had taken place in Poland and that there was no record of one in the medical notes. She said it was not relevant to the defence as it was conducted at the trial.       
24.	The solicitor recalled the complainant’s reference to the previous assault in her witness statement but did not recall the extract from Dr Naumiuk’s report. She said the defence was not in the position to dispute that the complainant suffered from some kind of psychiatric condition or anxiety disorder and may have suffered symptoms of it at the time she had sexual intercourse with the appellant. She said that as far as she could recall it did not occur to her, counsel or the appellant that they would be able to prove the previous assault allegation was false. Calling Dr Naumiuk would not have assisted the defence case save to confirm that such a complaint may not have been made to him.
25.	So the position was that by the time of the trial the complainant had given two differing accounts of a previous sexual assault on her but there was no record of her having mentioned any assault to those who had treated her for her psychiatric condition. Very extensive investigations were made on behalf of the appellant between the trial and the appeal, first of all to see if anyone had any recollection of her mentioning the assault. A further statement was taken from the complainant in September 2005. She said she remembered telling her friend Dorota Lysoniewska about the incident that had occurred when she was in High School. She thought it had happened in her first year in High School. When she was in her third year she received therapy at Zagorze near Warsaw. She thought she had spoken about the incident to the psychiatrist, Dr Naumiuk, although not in detail because he was a man. She then saw a psychologist Miss Alla and spoke to her in more detail during the latter part of her therapy. Miss Alla, whose full is name is Alla Lemieszynska-Kolodziejczyk, was traced in Canada. She has a clear memory of treating the complainant. She has no recollection of the complainant mentioning to her any incident of the nature described by the complainant and says that there is no record of any sexual assault in her notes. However, she does not go so far as to assert that she is sure she did not mention one.  Dorota Lysoniewska was seen and made a statement in Poland. She said she had known the complainant since primary education in 1989. They were good friends, but saw less of each other after the complainant moved to a secondary school in Zagorze. She was not told of any attack on the complainant while they were in Poland. The first she had heard of it was when making her statement. All efforts on the appellant’s behalf to persuade her to come from Poland to give evidence failed. Had the court been prepared to accept fresh evidence from her it would have been under the hearsay provisions of the Criminal Justice Act 2003. 
26.	We heard oral evidence de bene esse from two witnesses. Jaroslaw Rangotis, who runs a detective agency, was called by the appellant and Anna Strzeboszewska was called by the Crown. The issue to be resolved, as we understood it, was that Miss Strzeboszewska had said in a statement taken by the Warsaw public prosecutor that when she and the complainant were at school together she had heard from the complainant about a sexual assault or somebody trying to rape her but that she did not know the details, whereas Miss Strzeboszewska had told Mr Rangotis she knew nothing of any assault on the complainant in Poland.
27.	Mr Rangotis told us that in 2004 he was asked to investigate whether various people in Poland knew about a serious sexual assault on the complainant. He was asked to investigate whether or not, aged 16, she had been raped. He saw nine individuals; none knew anything about an assault on her. He told us he saw Miss Strzeboszewska in December 2004 in her parents flat. Her father sat in at the beginning and then left. He had a second conversation with the complainant over the telephone two days later just to make certain what he had been told. He made some hand-written notes of the questions and answers. His typed report was from his notes and memory. He said Miss Strzeboszewska knew nothing of the assault on the complainant in Poland. If she had mentioned it he would have gone into more detail.
28.	In cross-examination Mr Rangotis said he typed up his report in early 2005 and handed over everything to the London agency for whom he was working. He made no reference to the telephone conversation because it was not important; it did not add to the case. Miss Strzeboszewska received no prior notice of the visit. He just went to her house. He thought she knew more than she said. He destroyed his original notes when he made his statement.
29.	During the course of the hearing before us the appellant disclosed a report of 23 December 2004 from those in London who had instructed Mr Rangotis as their agent in Poland. It records of the interview with Miss Strzeboszewska:
“She did not know about any sexual events in Poland. She heard about it from (the complainant) but without specific detail. She did not know anything about treatment in Warsaw after (the complainant) was 18 years old.” 
 And a little later:
“(The complainant) claimed that sexual event in Poland (she could not say what they were) and additionally the situation in (the complainant’s) home had a big influence on (the complainant’s) psyche and general behaviour.”
30.	It is regrettable that this document was not disclosed earlier. When Miss Strzeboszewska gave evidence she said she first met the complainant in Zagorze at the education centre; they shared the same room. They had a good friendship and later kept in touch by e-mail. Her evidence accorded with her statement that the complainant told her about a sexual assault or somebody attempting to rape her but she did not know the details. In cross-examination she said she knew that the incident had occurred at a party. She said she remembered seeing Mr Rangotis and remembered her father leaving the room. She said she had heard about the previous rape or sexual assault because the complainant had told her. She did not know the details, only that it had happened and that it had had a very big influence on her. It happened when she was at High School before she knew her. 
31.	Miss Strzeboszewska said the complainant had spoken to her but had not told her not to speak about the previous assault. She said she was sorry Miss Strzeboszewska had become involved in “the matter” by which she meant the rape in England. 
32.	In the judgment of each member of the court Miss Strzeboszewska was a manifestly honest witness doing her best to help the court. The critical aspect of her evidence was supported by the inquiry agent’s report disclosed only during the appeal hearing. We did not find Mr Rangotis credible on the key issue and generally he was not an impressive witness. 
33.	Accordingly the position seems to us to be this. The whole of the fresh evidence sought to be introduced by the defence, both in written and oral form and by the prosecution in rebuttal, shows that the complainant mentioned an assault that appears to have occurred at a party at a time when she was at High School. Further, she mentioned it to a close friend at a time when she was receiving treatment for her psychiatric condition. The fact that there is no evidence of the attack having been mentioned to anyone else and that the account given by the complainant in her witness statement to the police refers to “serious injuries” does not indicate, either that there never was any attack at all or that the complainant has been untruthful.
34.	We agree with the submission of Mr Victor Temple Q.C. for the prosecution that the fact that the complainant was reluctant to confide in teachers, her family and others does not begin to demonstrate falsity. There may well have been confusion in her mind as to whom she did tell. Further, medical notes show, that she had a huge problem with memory and the fact that there is no record of any assault in such medical records as the court has seen does not necessarily mean one was never mentioned. She was reserved and it was not in her nature to tell others. There was little communication with her parents. 
35.	The Crown had the complainant available to give evidence on the appeal if the court required it. The court would, for obvious reasons only have heard evidence from her had it considered it absolutely necessary. We did not consider it necessary to hear any further evidence from her.
36.	Part of the argument advanced by Mr Mansfield was that the complainant deliberately tried to stop the appellant from obtaining access to Dorota Lysoniewska and that it was to be inferred that her apparent unwillingness to come to England to give evidence on the appeal was due to this.  The complainant admits visiting Dorota in September 2005 and they were also in contact by e-mail. It is argued that she must have known where the police could contact her and yet she did not tell them. The short answer, according to the complainant in her statement of 21 June 2006, is that there were two telephone numbers in her address book which were in Poland but which she brought back with her when she returned to England. She then tried unsuccessfully to contact D.C. Gabriel to let her know the number. In our judgment there is no evidence that even remotely supports a conclusion that the complainant was trying to prevent the truth being told by Dorota. 
37.	We were invited to and did consider a good deal of further evidence de bene esse. Having read and heard it we reached the following conclusions with regard to s.23 of the Criminal Appeal Act 1968. The four criteria the court is required to have regard to under that section are:
a)	 whether the evidence appears to the court to be capable of belief; 
b)	whether it appears to the court that the evidence may afford any ground for allowing the appeal;
c)	whether the evidence would have been admissible in the proceedings from which the appeal lies on a issue which is the subject of the appeal;
d)	whether there is a reasonable explanation for failure to adduce the evidence in those proceedings.
38.	Other than the evidence of Mr Rangotis all the factual evidence that we heard and read appeared to be capable of belief. But the question is where does it lead? The further descriptions of the assault by the complainant make it appear less serious than it might originally have appeared from her statement to the police. It has never been suggested that any complaint was made to the authorities about it. The evidence from the psychiatrist suggests that she is not manipulative and there is no evidence to suggest her assertion that she had previously been sexually assaulted, whatever its precise nature is untrue.
39.	The position at the trial was that the defence knew what the complainant had said in her witness statement and they knew what she had told Dr Gaskin and Dr Taylor. The documents from those who represented the appellant at the trial make it clear that had they wished to explore the matter in cross-examination they were in a position to do so. There was, in the event, no reference by either the prosecution or the defence to the prior attack. We agree with Mr Temple that had the matter been raised it would have been a collateral issue and far from the critical issue in the case which was consent.  Furthermore it seems to us that had the matter been explored it could very well have been to be disadvantage of the appellant. There is nothing we have heard that suggests that raising the matter would have adversely affected the complainant’s credibility in the eyes of the jury. True the reference to “serious injuries” in the police statement is not entirely consistent with the complainant’s later description of the assault, but there are many possible explanations for the apparent discrepancy other than untruthfulness on her part.
40.	It is true that the appellant had a superficially attractive point that the complainant would not have gone back to the appellant’s flat if she had been indecently assaulted there two days before. However the complainant was able to give an answer in her evidence as explained in the summing up which was that she was in very dire circumstances at the time.
41.	We can well understand why the defence ran the case as they did at the trial. It was open to them to have explored the complainant’s past history (subject to the constraints of s.41 of the Youth Justice and Criminal Evidence Act 1999) and the defence was aware that there was some inconsistency about the previous sexual assault and the lack of reference to it in the complainant’s medical records. But in our view if such a course had been taken, even with all the information now available, it would have been of no benefit to the appellant. The introduction of the evidence whether by way of cross-examination or lead in chief would not have improved his case and might well have had the reverse effect. Accordingly we do not think the fresh evidence which is credible (i.e. other than Mr Rangotis) would afford any ground for allowing the appeal. Further, there is no reasonable explanation, other than that it would not have assisted the appellant, for not having pursued the matter at trial. Accordingly we dismissed the appeal on the ground on which leave had been given. 
42.	The other two grounds, on which we refused leave are as follows:
a)	The complainant has given many and contradictory accounts during the exploration of the “earlier attack” claim.
b)	The complainant’s conduct after the alleged rape, in particular the swift forming of a relationship with a wealthy employer many years her senior, echoes the suggestion as to her conduct as made by the appellant at trial and casts doubt upon her assertions about the effect of the alleged rape on her as made in her statement for the trial.
43.	Ground (a) is intimately connected with the ground which we have already rejected. Detailed examination of all the material put forward shows that the complainant has not made “many and contradictory” accounts. The evidence suggests she was subjected to a sexual attack, perhaps not of a very serious nature, albeit it had a damaging effect upon her, when she was at High School in Poland.
44.	As to (b), the starting point is a passage in her police statement where the complainant says:
“What happened had a devastating effect on me, I shall find it difficult to get over it. I lost self-confidence and belief that I am good for anything and will ever achieve anything. I don’t think I will ever get over it. I keep thinking about what happened all the time. For about a week or so I could (not) stand looking at myself in the mirror. I couldn’t look at my body. I did not change clothes and slept fully dressed. It was terrible. I cannot imagine ever feeling safe in the company of a man, ever having intimate relationship with my boyfriend again. I don’t know how much time it will take for me to stop thinking and analysing what happened”.	
45.	The appellant was fully aware at the time of the trial that the complainant had begun another relationship soon after the rape and that she had had a child. There was therefore the opportunity for counsel to seek to explore this in cross-examination at the trial had it been felt advantageous to do so. For what seem to us to be obvious reasons it was not. Mr Mansfield’s argument is that those advising the appellant, are now much better appraised of the situation because of the contents of letters to Dorota Lysoniewska and her witness statement.
46.	In our judgment the statement by the complainant in her witness statement about her feelings following the rape are entirely understandable. It seems to us almost impudent to suggest that what she said about her feelings must have been false because she began a relationship with a man and had a child by him within a short time of the offence against her. Mr Mansfield’s argument is that the circumstances in which the new relationship began are so similar to the defence case as to suggest the complainant’s evidence at the trial was not true. There she was a few weeks later doing precisely what the appellant was alleging at the trial.
47.	Mr Temple’s response is that such similarities as there are not striking and are perfectly capable of explanation. The complainant knew very few people in England and it is unsurprising that she should meet someone when she was looking for work. She met the appellant looking for work; she met her new partner, Anand, after dropping off leaflets to which he responded. She was interested in cleaning work because of her lack of English. It is not surprising a businessman would want to employ a cleaner and not unusual for a businessman to be older than the complainant. A search for work in Acton would very likely lead her into contact with Asian businessmen.
48.	Mr Temple points out that at the trial the appellant’s case included the suggestion that the complainant sought a sexual relationship so that she would obtain accommodation, money and a job. But, after the first meeting it was a week before she ever got in touch with the appellant again; no demand for money was ever made and no attempt was made to blackmail him. Having left the flat the complainant made an almost immediate complaint whilst in a state of considerable distress, and immediately followed it by reporting the matter to the police. Further, the letters to her friend Dorota show that it is family life and domestic interests that matter to her. There is, in our view, nothing in either of these grounds of appeal.
49.	Accordingly we dismissed the appeal on the one ground upon which leave was given and refused leave to appeal on the other grounds. Although, as we have recorded, the case turned on the credibility of the complainant, there were a number of matters on which the jury could make an assessment quite apart from their general perception of the witnesses. The appellant lied to the police in respect of two specific and significant matters. Further, whilst he claimed that the complainant had left his company on the third occasion in a happy frame of mind, there was evidence of complaint very soon thereafter with the complainant in considerable distress. The summing up was fair, thorough and clear. We have no doubt that the appellant’s conviction is safe.