2016/04057/B3 & 2016/04058/B3
Neutral Citation Number: [2017] EWCA Crim 1394
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  26th  July  2017

B e f o r e:
LORD  JUSTICE  GROSS

MR  JUSTICE  SPENCER

and

HIS  HONOUR  JUDGE  MARSON  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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FARAI  ALEXIO  USAYI

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Mr T Chaize appeared on behalf of the Appellant 

Mr C Stimpson appeared on behalf of the Crown

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J U D G M E N T
Wednesday  26th  July  2017

LORD JUSTICE GROSS:  
1.  On 6th January 2016, in the Crown Court at Chichester before His Honour Judge Niblett, the appellant (now aged 47) pleaded guilty to count 1.  On 8th August 2016, before the same court, the appellant pleaded guilty to count 2.  On 11th August 2016 the appellant was convicted of count 3 and was sentenced by Judge Niblett as follows: for two offences of sexual activity with a person with a mental disorder by a care worker, contrary to section 38(1) of the Sexual Offences Act 2003 (counts 1 and 2, to which he pleaded guilty), to twelve months' imprisonment on count 1 and three years' imprisonment on count 2, both concurrent; and on count 3 (a similar offence, contrary to section 38(1) and (3) of the 2003 Act, of which he was convicted following a trial), to a term of six years' imprisonment.  The total sentence was thus one of six years' imprisonment.  Various other orders were made which it is unnecessary to recount here.

2.  The appellant now appeals against conviction with the leave of the full court given in a judgment dated 7th April 2017.  The appellant also renews his application for leave to appeal against sentence.  He was refused leave by the single judge, and his renewed application was adjourned to this hearing by the full court.

3.  Mr Chaize, who represented the appellant at trial, has appeared before us.  For the Crown Mr Stimpson (who did not appear at the trial) has appeared today.

4.  The single ground of the appeal against conviction concerns the refusal of the judge to permit the introduction of a hospital document (to describe it neutrally) into evidence.  The judge ruled that it was hearsay and was inadmissible.

5.  There was a good deal of material canvassed by Mr Chaize in his skeleton argument going to the complainant's video interview and to whether or not the court had been misled by the intermediary.  As he acknowledged before us today, those were matters of background.  They do not comprise grounds of appeal.  In our judgment, they do not assist us at all.  We say no more about them.  We mention them at this stage simply to clear the decks.

6.  Reporting restrictions apply to this case.

The Conviction Appeal
7.  The facts may be shortly described.  In September 2014, the appellant began to work as a carer at the Langley Green Mental Health Hospital in Sussex.  Whilst working on the Jade Ward he met the complainant, "EA", aged 22 (less than half his age).  The complainant was a patient suffering from mild learning difficulties and post-traumatic stress disorder who routinely self-harmed.  Part of the appellant's role was to have one-to-one conversations with patients.  Through doing so he built up a good rapport with the complainant.  However, she began to seek out his company in a more and more inappropriate way and he willingly joined in.  They exchanged photographs of each other naked.

8.  On 2nd October 2014 (within weeks of commencing work there), as a result of an improvement in her mental health, the complainant was granted unaccompanied leave from the hospital for two hours.  She and the appellant met in secret in a park, where they held hands and kissed.  Those facts comprise count 1.

9.  On 4th October 2014 (two days thereafter), the complainant was granted further unaccompanied leave and again she met the appellant in the park.  This time the appellant kissed the complainant's breasts, and she kissed his penis (count 2).  It will be recalled that he pleaded guilty to that count.

10.  We come to the facts which were in issue.  The appellant positioned himself against a tree, partly shielded from public view, and he and the complainant continued to have sexual activity (count 3).  Shortly thereafter, the appellant left the park alone.

11.  The prosecution case in relation to count 3 was that the appellant had intentionally penetrated the complainant's mouth with his penis.  The prosecution relied upon the evidence of the complainant and what may be described as recent complaint evidence from Detective Constable Scott.

12.  The defence case in relation to count 3 was that the complainant had kissed the appellant's penis, but not put it into her mouth.

13.  The issue for the jury in relation to count 3 was penetration: had the appellant inserted his penis into the complainant's mouth?

14.  We deal only briefly with certain further evidence.  Whilst still in the park, the complainant received an abusive telephone call from her mother which resulted in her taking an overdose and being admitted to hospital.  The appellant was called to the hospital.  Whilst there, he was observed to comfort and cuddle the complainant in an inappropriate way.  Shortly thereafter, he was suspended from his job.  He told the complainant that he could not see her anymore.  What followed was that she set fire to her clothing and, albeit unintentionally, burnt herself to such an extent that she required two skin grafts.  She later said to a member of staff, "Please let me back into Jade Ward after this.  I didn't mean to burn myself that bad.  It's just what Alex [the appellant] said to me".

15.  On 9th October 2014, the appellant was arrested and interviewed.  He was co-operative but declined to answer any questions.  

16.  At trial, the complainant gave evidence that whilst in the park she pulled down the appellant's trousers and gave him a "blow job".  She said that it only lasted about five minutes because they were scared they might get caught.  She said that the appellant's penis was in her mouth and he was stroking her head.  She said that he did not ejaculate; it just stopped.  They then walked to another bench and talked about going to a hotel on another occasion.

17.  In cross-examination, the complainant said that she had not planned it; it just happened.  She maintained her account that she did put the appellant's penis inside her mouth.  She said in the appellant's favour that he was always nice and gentle towards her and never forced her to do anything.  She denied the suggestion that she had told the appellant that her mother had died.  

18.  In re-examination she said that she had no idea what was going to happen that afternoon.  She said that the "blow job" took place in between the kissing and licking of her breasts.

19.  There was also evidence from Detective Constable Scott.  She saw the complainant on 7th October 2014, when she was in a lot of pain and was about to go into surgery (that is, after she had burnt herself).  The complainant told her that her memory was not good.  She formed the opinion that the complainant was not necessarily confused, but that she (the complainant) did not want to tell her (Detective Constable Scott) what had happened and did not want to get the appellant into trouble.  The complainant told her that she and the appellant had been friends for a couple of weeks and had made contact via WhatsApp the previous Saturday.  They had been in the woods kissing and cuddling, got carried away, and she had given the appellant a "blow job".  She said that she wanted to do it.  The complainant said that the appellant had not touched her sexually, and she was unable to have sexual intercourse with him for reasons which do not matter for present purposes.

20.  The appellant gave evidence.  He denied that anything had happened beyond the complainant kissing his penis and the other matters to which he had pleaded guilty.

21.  The defence applied to admit into evidence a document entitled "Multidisciplinary Evaluation and Progress Notes", dated 3rd October 2014.  The note said as follows:

"Patients and staff attended.  [EA] later spoke to a member of staff (Alfred C/H) about the conversation she had with Bill Turner.  [EA] said she wants to get access to see her daughter and her mother will be supporting her with that.  She realised that not long ago she said to staff her mother died.  She became upset and didn't know what to say.  She got tearful and apologetic.  Said she doesn't want staff to think that she is a liar.  Staff explained that this is a serious thing and everyone was very worried and sorry about her loss.  [EA] said that her sister deceived her and told her a lie about her mother's death.  [EA] has been low in mood after this incident.  Later came to the office and asked staff to keep her cigarettes and give her one every three hours.  No self-harm."

22.  As already indicated, the judge refused to admit the note in evidence.  There were no skeleton arguments and he gave an ex tempore ruling late in the afternoon.  In his ruling, he said that the appellant had applied to admit the document pursuant to section 117 of the Criminal Justice Act 2003.  Miss Knight (then counsel for the Crown) submitted that the contents of the document were hearsay and that it could not be admitted pursuant to section 117.  Miss Knight submitted that section 114 applied because it was hearsay.  None of the exceptions to the rule applied.   Miss Knight also submitted that section 121 was relevant because it was multiple hearsay, and that the court should consider how reliable the statements appeared to be.

23.  We pause there to say that the arguments before the judge, in fairness to him, lacked clarity.  Section 117 would only have applied if the statements were hearsay.  Sections 114 and 117 are amongst the routes by which hearsay evidence can be admitted.

24.  In his ruling, the judge indicated that he had to ask himself the question as to whether the relevance was such that the interests of justice required the later statement to be admissible for that purpose.  On balance, the judge preferred the arguments of the Crown.  He concluded that the document was not admissible pursuant to section 117.  If section 121 applied, then as it seemed to the judge the value of the evidence was not such that the interests of justice required it to be before the jury.  He went on to say that, looking at the evidence overall, the jury had "more than enough material on which to make their decision as to whether or not they are sure that [EA] is reliable … in saying that there was oral penetration in this case.  They have her evidence and they have the [appellant's] evidence.  In my judgment, this document will not assist the jury and it is not in the interests of justice for it to be read to them.  So, accordingly, I must refuse the application".

25.  We turn to the rival contentions of counsel.  Mr Chaize, for the appellant, submitted in his written grounds that the judge had erred in law in refusing to admit the evidence under section 117(1)(a) and (b) of the Criminal Justice Act 2003.  Mr Chaize's first submission is that the evidence was not hearsay at all.  The purpose of seeking to adduce it was that the statement had been made by the complainant to gain the sympathy of the appellant and it was untrue.  Mr Chaize submitted that section 114 could have applied, but that the application was properly made under section 117.   The judge was wrong to consider whether it would assist the jury as part of the test to be applied.  Also, he had referred to the interests of justice test, which was part of section 114, but was misapplied to section 117.  

26.  There were various other grounds upon which Mr Chaize sought to rely in writing.  One related to section 4 of the Criminal Procedure Act 1865, and another to bad character evidence.  Neither has any substance and we say no more about them.

27.  The further point Mr Chaize did make (before us rather than hitherto) was that, under section 117, if the evidence was once admissible, then there was no discretion to exclude it.

28.  Developing those submissions today, Mr Chaize's argument proceeded as follows.  First, he submitted that the evidence was relevant to the complainant's credibility: (a) the complainant was both vulnerable and manipulative – that was certainly not unknown; (b) she had sought to gain the appellant's sympathy because she wanted a relationship with him; (c) the appellant had been almost wholly untrained before he began his work as a carer; (d) to gain his sympathy, the complainant told a lie about her mother's death ; (e) accordingly, the jury could take that lie into account in considering credibility when talking about the "blow job"; (f) the case put by the appellant was supported by the terms of the note which we have already read; and (g) there was a further lie in her evidence about why the member of the public who assisted her when she became ill had first called the appellant, but that is a separate topic which almost certainly would not take matters much further, save for an additional lie going to credibility.

29.  With regard to admissibility and credibility, Mr Chaize drew our attention to the passage in Archbold at paragraph 8-252 and the authorities there cited, namely R v Funderburk 90 Cr App R 466, and R v Nagrecha [1997] 2 Cr App R 401; the evidence in those cases was relevant because it touched on the complainant's credibility.  In the same way, here, the alleged lie contained in the note was relevant to credibility and therefore provided the foundation for the arguments as to admissibility.

30.  Mr Stimpson, for the Crown, submitted that the evidence failed the relevance test; it was far too remote to be relevant; there was a confined and discrete issue as to whether the appellant's penis was in the mouth of the complainant, and nothing in the note was relevant to that.  If he was wrong about that, Mr Stimpson did not concede admissibility under any of sections 114, 117 or 121 of the Criminal Justice Act 2003.  Finally, and in any event, Mr Stimpson's submission was that the refusal to admit the note into evidence had no impact whatever on the safety of the conviction.

Discussion
31.  We can understand why, in this somewhat confusing state of affairs, the full court gave leave.  But, with respect to the arguments presented to us, on closer examination there is much less to this case than might first have met the eye.

32.  First, in our judgment, the hospital note was simply not relevant.  If not relevant, it was not admissible by any route.  It is not a question of discretion; irrelevant evidence is inadmissible.  The discrete issue at trial related to whether the appellant penetrated the complainant's mouth with his penis, or whether she simply kissed it.  The complainant was never accused of lying on that point.  That was not put to her.  In fairness to Mr Chaize, no doubt he was concerned about the extent of his cross-examination of a vulnerable witness; but let us assume in his favour that he challenged the accuracy of her account.  We are unable to see that an extended debate about the construction of the hospital note would have been of the remotest relevance to the question of whether the appellant's penis was in the complainant's mouth.  It is too remote – too far removed from the issue to be relevant.  In that regard, the evidence in this case stands in the clearest contrast to the evidence in Funderburk, where the issue as to credibility went directly to the complainant's account of the very incident itself.

33.  It is also fair to say that the note does not suggest that the complainant told the appellant of her mother's death. Still further, the introduction of the note would have resulted in an extraneous debate about whether it was something the complainant had concocted, or whether she was simply repeating her sister's lie.  That would have been wholly tangential and more apt to confuse the jury than to assist them with relevant evidence.  In fairness again to him, Mr Chaize did cross-examine on this point, albeit without the note.  He got nowhere.  Although he has told us that his impression was that he had been stopped, the transcript does not record that.

34.  In our judgment, this note was not relevant.  The judge was, therefore, right to exclude it, not necessarily for the reasons he gave, but that matters not.

35.  Secondly, however, we do not leave matters there.  Let us assume that the note was admissible.  Let us assume further that, if relevant, it was arguably admissible either because it was not hearsay at all in that the appellant was not seeking to establish the truth of any of the statements there, or, alternatively, by a combination of sections 117 and 121 of the Criminal Justice Act 2003.  In that latter regard, let us assume that the hearsay Mr Chaize was seeking to establish was that the complainant had indeed lied.  The reason for it being admissible under sections 117 and 121 would be as follows.  Under section 117(2)(a) the document would have been created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of an office.  Under section 117(2)(b) the person who supplied the information had or may reasonably be supposed to have had personal knowledge of the matters dealt with.  On the face of it, that might be said to cover the note.  The statement of the complainant appears to have been told to the charge nurse, who appears to have relayed it to the staff nurse, who wrote it down.  That description reveals why section 121 would have been relevant: section 121 covers multiple hearsay.  Under section 121(1)(a) it is at least arguable that the evidence would have been admissible because of the cross-reference back to section 117.  Of course, if it was not hearsay at all, and if it was relevant, contrary to our view, then it was admissible without reference to either section 117 or section 121.  

36.  Pausing there, we underline that we have proceeded on those assumptions without reaching any such conclusion.  However, we continue with the assumption.  If the assumption is well made that the document was both relevant and admissible, then it follows that the judge erred in excluding it.  What then?

37.  In our judgment we are entirely satisfied that if (contrary to our view) the judge was wrong to exclude it then, if relevant at all, the document was so peripheral that the safety of the conviction was wholly unaffected.  We entertain no doubt on that point.  It is clear from all the material that if anything the complainant was anxious not to damage the appellant.  It is further clear that on the key issue she gave a consistent account throughout.  That account gains some support from the recent complaint evidence comprising what she said to Detective Constable Scott.   Ultimately, with respect to Mr Chaize's attempt to argue to the contrary, this was a short, narrow and discrete point, unaffected by an extraneous and tangential debate.

38.  We add only this.  This case stands as a reminder of the benefits of establishing the scope of cross-examination in advance of a vulnerable witness giving evidence.  Whether or not questions in cross-examination need to be reduced to writing, and whether or not strictly part of the section 28 scheme, a case management grip on the scope of cross-examination in this case would undoubtedly have helped.  In fairness to the judge, the only point flagged in the ground rules hearing was the question of whether or not the complainant had given the appellant a "blow job".  Perhaps, against that background, the judge had not focused on reducing the scope of cross-examination into writing.

39.  We add one further matter.  It is with some concern that we heard that the appellant was employed in this role, almost wholly untrained.  That is a matter which we would be grateful if the Crown Prosecution Service relayed to the relevant Government Department.  This case is an indication of what can happen in such circumstances.

40.  Be all that as it may, for the reasons we have given we dismiss the appeal against conviction.

The renewed application for leave to appeal against sentence
41.  We turn to deal with the renewed application for leave to appeal against sentence.  We give leave for one reason and one reason only.  It is purely technical and so of no real benefit to the appellant.  The reason is that we understand a victim surcharge of £170 was ordered.  That was in error.  £120 should be ordered.  For that reason, we give leave to appeal.  We quash the order for £170 and we substitute an order for £120.

42.  That apart, we see no merit whatever in the renewed application for leave to appeal against sentence.  Mr Chaize's submissions ran as follows.  The appellant was "virtually untrained".  That was a matter to which we alluded earlier in our judgment.  So far as concerns harm and culpability under the relevant guideline, Mr Chaize accepted category 1 harm, because of the penetration of the complainant's mouth with the appellant's penis; but he said that there was no proper basis for the culpability falling within A under the guideline.  There had been no planning in respect of count 3; the complainant's own evidence was that it had simply happened.  He disputed the existence of grooming behaviour.  He submitted that the complainant was a willing participant: "fifty-fifty".  He submitted that the "sexting" exchanges between the two was irrelevant to count 3.  In fact, he went so far as to submit that, while it lasted, the relationship was "of benefit" to the complainant's mental state; it was not the relationship, but the fact that the relationship ceased which resulted in the complainant harming herself.

43.  We reject, unequivocally, that last submission.  It is entirely misconceived.  When a carer embarks on a sexual relationship with a mentally disturbed person, there is an unbroken chain of causation, save for some truly extraordinary facts, between the relationship, its escalation, and harm resulting when in due course the relationship comes to an end.  We put that submission wholly to one side.

44.  For the rest, looked at in isolation, there was no planning on count 3, but there was undoubted planning as far as the relationship as a whole was concerned.  There was certainly a distinct element of grooming.  The judge, who had the benefit of conducting the trial, reached that conclusion; and there were the other aspects of the overall criminality, including the exchange of the sexual images.

45.  The sentence has to be looked at with reference to the criminality as a whole.  Looking at count 3 to start with, for the reasons given by both the judge and the single judge – and with which we agree – we are quite unable to conclude that the sentence, though above the starting point, was manifestly excessive.  It may have been severe.  Some judges may have sentenced to a slightly lesser term, but we cannot find that it was manifestly excessive.

46.  In those circumstances, the sentences on counts 1 and 2 are academic and we do not propose to interfere with them.  For those reasons, we dismiss the appeal against sentence, other than, as we have already said, the wholly separate point of the victim surcharge.