No: 2012/4861/B1 
Neutral Citation Number: [2013] EWCA Crim 2171
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 7 November 2013
 
B e f o r e:
 
LORD JUSTICE McCOMBE 
MR JUSTICE WYN WILLIAMS 

MRS JUSTICE PATTERSON DBE 
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R E G I N A 

v 

ANTONI IMIELA
 
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Mr R Jory QC and Mr N Mohindru appeared on behalf of the Applicant
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J U D G M E N T
1.	MR JUSTICE WYN WILLIAMS:  On 22nd March 2012 at the Central Criminal Court, the applicant was convicted of offences of rape, indecent assault and buggery.  The next day His Honour Judge Bevan QC, the trial judge, sentenced the applicant to terms of six years' imprisonment in respect of each offence.  The learned judge directed that the sentences imposed for the offences of rape and buggery should be served consecutively.  He directed that the sentence for the indecent assault should be served concurrently.  Accordingly, and in the result, the total sentence imposed upon the applicant was 12 years' imprisonment.
2.	Following his convictions the applicant filed a notice of appeal.  Grounds of appeal were settled by leading counsel.  They were two in number.  In due course these grounds were considered by the single judge who concluded that they were unmeritorious.  Accordingly, permission to appeal was refused.
3.	This morning Mr Jory QC, assisted by Mr Mohindru, on behalf of the applicant renews the application for permission to appeal against the applicant's convictions.  He has abandoned one of the two grounds which were considered by the single judge.  We will deal shortly with that later in this judgment.  He renews his application on the basis of one ground which we will elaborate fully in the course of this judgment.  However, before considering the grounds it is as well to set out the salient facts as alleged by the prosecution.
4.	The three offences alleged against the applicant were said to have occurred on Christmas Day 1987.  The alleged victim of the offences, a woman to whom we shall refer as J, had spent a substantial part of the day at home with her husband.  During the evening, however, the two of them decided to go to the local pub.  At some point during the course of the evening they separated.  J thought that her husband may have gone home.  She decided to walk home to look for him.  She walked home without any mishap.  She discovered that her husband was not there and so she decided to go back out in order, as she maintained, to look for him.  
5.	The description of what happened next is taken from a skeleton argument which the prosecutor produced during the course of the proceedings below.  Quite soon after J had left home she saw a man in the street nearby. As soon as J saw the man he walked towards her.  He quickened his pace as he did so.  He proceeded to grab her around the neck, put his hand over her mouth and threw her to the ground.  This man next took up a brick or part of a brick which he then held aloft and threatened J that he would hit her unless she remained silent.  The man then began to rape her.  At first J resisted with the consequence that she was struck a number of blows to her face.  The man continued to threaten her.  For example, he threatened that he would kill her unless she complied with his demands.  The rape of J was quickly followed by the man penetrating J's mouth and anus with his penis.  The penetration of the mouth was charged as the indecent assault and the penetration of the anus was charged as buggery.  
6.	Following this ordeal J ran home.  Her mother‑in‑law was in the house.  J said immediately: "I've just got raped."  J's husband was also there.  He challenged her about it.  Indeed, initially, he did not believe what she was saying.  There was an altercation between the two of them with the consequence that J's young daughter was woken.  It was she who first saw that her mother had blood on her clothing and face.  Ultimately J's husband calmed down and she showed him a mark to her buttocks.  He then began to realise or form the view that J may be explaining exactly what had occurred accurately and so the incident was reported to the police.
7.	Approximately two‑and‑a‑half hours later, J was examined by a police doctor.  She told him that the man in question had penetrated both her vagina and anus.  The doctor noted marks on her face and legs which in his opinion supported J's account.  It was also discovered that J had blood on her knickers.  
8.	Samples were taken from J's vagina and anus and semen was found in the samples.  However, the DNA obtained from the semen did not match any DNA then known to the police.
9.	The day after the incident, J made a detailed witness statement to the police.  In that witness statement she described the man who had attacked her as being about five foot six inches tall, with brown hair and chubby hands.  It was a general description which fitted the applicant.  She described the man as speaking in an accent which was not local to London.
10.	The next significant date is many years later.  We move on to March 2003.  In that month the applicant was convicted of a number of offences of rape, we believe seven in total.  For these offences he was sentenced to life imprisonment with the judge specifying that the applicant should serve a minimum of 10 years prior to his release.  
11.	As a consequence of his conviction for these rapes, the applicant's DNA was obtained and retained on a police database.  Some years went by but then a cold case review began in relation to the attack upon J.  When it did take place, it was discovered that the DNA in the semen taken from J's vagina and anus matched the applicant's DNA.  The match probability was one in a billion.
12.	By the time this review had taken place, J had returned to South Africa.  Indeed, she had been murdered in South Africa.  Her death occurred in 2006.  We have no details of how she was killed, but there is no suggestion of any kind that it had anything to do with the applicant.
13.	On 26th January 2010 the applicant was interviewed under caution.  He was accompanied by his lawyer.  His solicitor was given comprehensive written pre‑interview disclosure.  The applicant was not told however that J had been killed.  Many of the questions put to the applicant during the course of interview afforded him the opportunity to assert that he had engaged in consensual sex, but the applicant declined to answer any of the questions which had been put to him.
14.	As we have said, at that stage J's murder had not been disclosed, but as the proceedings against him unfolded the applicant was informed of that event.  In his defence statement, which was served after the applicant knew that J had been killed, the applicant for the first time admitted that he had engaged in vaginal and oral intercourse but claimed that it was consensual.  In the same statement he denied that anal intercourse had taken place.  It is worth observing that the applicant first contended that J had consented to intercourse after he had been told that she was dead.  
15.	At an early stage of the proceedings the prosecution made it clear to the applicant's advisers that it would apply to adduce in evidence the witness statement which J had made to the police in 1987.  It also indicated that it would seek to adduce evidence relating to the applicant's convictions for rape in 2003.  His Honour Judge Bevan QC heard the application to adduce J's witness statement in August 2011.  He ruled that the statement should be admitted as part of the prosecution case.  The learned judge heard the application to admit evidence of the applicant's convictions for rape shortly before the commencement of the trial.  He ruled that those convictions were admissible.  
16.	This morning Mr Jory has accepted that the decision made by the learned judge to admit the witness statement of J cannot be impugned on appeal.  That is the ground of appeal which was originally formulated but which has now been abandoned.  Mr Jory accepts that the judge properly admitted the statement under the provisions of section 116 Criminal Justice Act 2003 and we need say no more about that aspect of the appeal, save to make this observation, that this proposed appeal now proceeds upon the basis that powerful evidence given by J in her witness statement as to the circumstances of the attack upon her were properly admitted before the jury.
17.	We turn therefore to consider the ground of appeal which remains.  Was the judge correct to admit the evidence of the convictions for rape in 2003?  As we have said, there were seven such convictions based upon the testimony of seven different complainants.  Section 101(1)(d) Criminal Justice Act 2003 provides that evidence of a defendant's bad character is admissible if, but only if, it is relevant to an important matter in issue between the defendant and the prosecution.  Section 101(3) provides that the court must not admit the evidence under section 101(1)(d) if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.  We should also mention section 101(4).  That provides that when a court is determining whether to exclude evidence of bad character under section 101(3) it must have regard in particular to the length of time which had elapsed between the events said to constitute the bad character and the offences which the defendant is charged.  
18.	In the instant case, the prosecution submitted to His Honour Judge Bevan QC that the evidence relating to the applicant's convictions for rape demonstrated that he had a propensity to commit such crimes.  It also alleged that the circumstances of the offences leading to the convictions for rape in 2003 bore strong similarities to the circumstances surrounding the alleged attack upon J.  
19.	The principal issue between the prosecution and defence in the trial was the issue of consent.  Certainly that was the issue on counts 1 and 2.  The prosecution's submission was that the convictions for rape went a substantial way towards rebutting the defendant's assertion that J had consented to sexual intercourse.  The prosecution also submitted that it was proper evidence to rebut the suggestion that the buggery had not taken place which was the defence to count 3.
20.	Before the judge below, and before us, a number of points have been raised in an attempt to establish that the convictions for rape should not have been admitted.  Mr Jory submits that the judge should not have found that the convictions were relevant to the issue of propensity, given the long period of time which had elapsed between the alleged offence which was on Christmas Day 1987 and the events giving rise to the appellant's convictions for rape which had occurred in 2001 and 2002.  Mr Jory does not submit that the convictions were not admissible because they came after the offences upon which the applicant was standing his trial.  He relies however upon the long period which elapsed between the relevant events.  
21.	In the written grounds of appeal, reliance was placed upon the fact that the evidence relating to the convictions for rape in 2003 was presented to the jury by adducing the witness statements of the complainants in those cases.  The judge declined a defence request that the witnesses should be brought to court for cross‑examination.  
22.	We can deal with this last point quite quickly, given that Mr Jory did not elaborate it further in his oral submissions.  In the applicant's trial in 2003 there was no dispute but that each of the complainants had been raped.  The applicant's defence to those charges was not that the complainants had consented, it was that he was not the man who had committed the crimes in question.  For our part we are quite unable to see why the complainants from the case in 2003 were necessary live witnesses to describe events about which essentially there was no dispute.  
23.	We return therefore to the principal submission made by Mr Jory relating to the length of time which elapsed between the relevant events.  We acknowledge that the period in question on any view was a significant period.  We note however that for some of the intervening years the applicant was in prison serving sentences for serious offences.  In our judgment, inevitably, that draws some of the sting in the point made on behalf of the applicant that a long period of time had elapsed between the relevant offences.
24.	We have scrutinised the ruling of His Honour Judge Bevan QC with care.  It is clear that he paid particular attention to the issue of the delay between the relevant events and all the other considerations which were material as to whether (a) the evidence was properly admissible, or (b) whether in the exercise of his discretion he should nonetheless exclude it.  In our judgment, his ruling cannot be faulted.  We conclude that the evidence of the convictions was properly admitted.  We also conclude that the judge was correct to say that the admission of the convictions would not have such an adverse effect on the fairness of the trial that the convictions ought to be excluded.  
25.	During the course of his oral submissions this morning, Mr Jory submitted in effect that such was the prejudicial effect of the convictions for rape in 2003 that no directions given in a summing‑up could possibly cure it.  We have reflected upon that submission too, but we have concluded that an appropriately directed jury were able to remove the prejudicial effect of the convictions and concentrate properly upon their probative value.  In this case there is no criticism of the learned judge's summing‑up whatsoever.  Nor in our judgment could there be.  He gave his directions about the probative value of the convictions and the caution with which the jury should proceed in relation to those convictions in trenchant terms.  
26.	Having reflected upon the ground of appeal advanced by Mr Jory this morning, we have reached the conclusion that the trial judge was correct to admit the evidence of the convictions and that the single judge was correct to refuse permission to appeal based upon this ground.  Accordingly, this renewed application is refused.