Neutral Citation Number: [2004] EWCA Crim 105

Case No: 200300551-C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE ROBBINS 

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29 January 2004
Before :

LORD JUSTICE THOMAS
Mr JUSTICE McCOMBE 
and
The RECORDER OF MIDDLESBROUGH 
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Between :

	CHINEDU NWOBU	Appellant	
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	Regina	Respondent	

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Nicholas Valios QC (instructed by Needham Poulier & Partners) for the Appellant
Jeremy Donne QC (instructed by The Crown Prosecution Service) for the Respondent

Hearing date: 12 December 2003
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JUDGMENT:
LORD JUSTICE THOMAS: 
On 13 November 2002, the appellant was convicted at the Crown Court at Southwark before HHJ Robbins and a jury of one count of rape; on 20 December 2002 he was sentenced to 6 years imprisonment and was also ordered to pay £20,000 towards the costs of the prosecution and a recovery of defence costs order was also made in the sum of £37,000.  He appealed against conviction and sentence with the leave of the single Judge.
1.	We dismissed the appeal against conviction, but allowed to an extent the appeal against sentence; we stated that we would give our reasons in writing. 
2.	The indictment on which the appellant was tried contained three counts of rape; two of those counts alleged rape of different women in 2000 and on those two counts he was found not guilty.  On the third count, on which he was found guilty, he was charged with the rape of the victim to whom I shall refer to as A.  It is not necessary to refer in any way to the two counts on which he was acquitted, but the facts in relation to the count of rape against A can be briefly summarised.
The evidence at the trial in relation to the rape
3.	For some eighteen months prior to the 31 August 2001 the appellant and A had been known to each other.  The appellant was involved in the promotion of night clubs and A had her own career.  On 31 August 2001 they met at a bar; they left with a friend and stopped at that friend’s house on the way.  After leaving the friend’s home, the appellant and A arrived at A’s flat at about 3.45 am on 1 September 2001.  A invited the appellant into her flat.  They had coffee he knelt and kissed her and she reciprocated.  
4.	Her account was then as follows.  They joked about the fact the he had slept with her friend Heidi Merryweather.  She told him she was not interested in having sex with him.  He tried to take her top off and fondle her breasts.  He guided her to the floor, lifted up her top and undid her bra.  She told him she did not want to, but he replied that it was only a bit of fun.  He came on top of her and fondled her breasts and sucked her nipples.  She tried to pull her top down and do her bra up.  She told him she did not want to sleep with him.  He told her it was just fun.  He tried to undo her trousers and succeeded and pulled them down; she tried to pull her trousers up and told him not to.  She was having a period and had a tampon in.  She was concerned she might be damaged.  He pulled his trousers down and put the tip of his penis into her vagina.  She tried to push him off, she was crying.  He then stopped and after a while he left.
5.	The appellant’s account in the evidence he gave was that after kissing they had fondled each other.  He moved her top up, touched her breasts, undid her trousers and lowered them.  He then lowered his own.  He removed her knickers and inserted his penis into her vagina.  There was no objection.  After a few seconds she had said we can not do this, as he had slept with her best friend and he had a girlfriend.  He stopped she asked him not to leave.  He went to kiss her on the cheek but she tried to kiss his lips and he pulled back.
The evidence at trial in relation to the events after the rape
6.	It was the appellant’s evidence that he had telephoned Heidi Merryweather the next day and asked her why she had told A about their having had sex; he had also told her that A “tried it on with me as I left”.  A had also telephoned him on the same day and said that “he had tried it on with her”.  He had told her that she was immature and told her that he was going to erase both hers and Heidi Merryweather’s numbers from his phone.  She had never told him that he had raped her at that time.
7.	A’s evidence was also to the effect she had phoned him but she had asked him why he had done it; he had told her to erase his number from her phone and to telephone Heidi Merryweather and ask her to erase his number from her phone.  He told her that they were no longer friends.  
8.	On 2 September in the evening she went to the police station; she made a witness statement on 23 September 2001 but did not wish to press charges at that time.  She changed her mind after the arrest of the defendant.  
9.	There was no evidence of recent complaint or other significant evidence in relation to the rape of A before the jury.
The application for leave to appeal
10.	The application for leave to appeal was made on a number of grounds but granted on only the one under which the appellant sought to adduce the fresh evidence of Heidi Merryweather.  Although it had originally been intimated that the application on the other grounds would be renewed before us, no such renewed application was made.  The appeal before us therefore proceeded on one ground only, namely that the court should hear the fresh evidence of Heidi Merryweather and, as that evidence was capable of belief, the conviction should be set aside and a retrial ordered.
11.	Under s.23 of the Criminal Appeal Act 1968 the Court may receive evidence which was not used at the trial, but in considering whether to receive any such evidence must have regard in particular to:
“(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 an issue which is the subject of appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
12.	We decided first to hear the evidence in relation to the failure to adduce the evidence of Heidi Merryweather at trial and the evidence of Heidi Merryweather. The Crown had served a further statement from A and from a police officer and applied to call these witnesses, if necessary, in rebuttal. In the event, for the reasons set out below, we did not need to hear the evidence the Crown sought to adduce.
The explanation for the failure to adduce the evidence at the trial
13.	The explanation put forward on behalf of the appellant for the failure to adduce the evidence at trial was set out in a witness statement dated 21 January 2003 and made by Sean Poulier of Needham Poulier and Partners.  He was also called to give evidence before us to explain certain matters that were unclear from that statement.  Mr Poulier had been instructed on behalf of the appellant on 1 October 2001, the day after the appellant’s arrest and charge.
14.	It is convenient to consider the explanation for the failure to call Heidi Merryweather at the trial by asking two questions:  (1) Should Heidi Merryweather have been located and a statement taken prior to her departure with her employers to the United States on 1 July 2002? (2) After her return from the United States on 10 October 2002 should she have been contacted and called to give evidence at the trial?
(1) The period prior to 1 July 2002
15.	At some time between 8 October 2001 (when the appellant was granted bail on conditions which included the condition that he should not contact prosecution witnesses) and 22 November 2001, the prosecution supplied Mr Poulier with a list of those whom the appellant was not to contact; on that list was Heidi Merryweather.  It was Mr Poulier’s evidence that he thought therefore that Heidi Merryweather was a witness to be called by the prosecution.
16.	When on 22 November 2001 the prosecution served the committal papers, no statement from Heidi Merryweather was included.  It was therefore clear at least from that point of time that Heidi Merryweather was not to be one of the main prosecution witnesses; as Mr Poulier accepted, it would have been open to him at any time thereafter to ask the Crown Prosecution Service whether they intended to call Heidi Merryweather, though he did not do that until some time later.  That is no criticism of Mr Poulier, because it was not until 16 January 2002 that the appellant provided him with a list of witnesses whom the appellant said would help the appellant prove his case; although the list could not be found, Mr Poulier believed Heidi Merryweather was on that list.  However again no criticism should attach to Mr Poulier, as he had the other two counts of rape to investigate on behalf of the appellant and, given the resources available to him, he was not in a position to consider the count of rape involving A until April.  His evidence was that he tried to find Heidi Merryweather from the end of April.
17.	It became clear from the evidence of Heidi Merryweather (which we heard for the reasons set out in paragraph 25) that the appellant knew where she lived. Heidi Merryweather was a live-in nanny. The appellant had visited the residence of her employers on a Sunday in August 2001.  He had had sexual intercourse with her at that residence on that one occasion. She remained at that residence until she left for America on 1 July 2002 with her employers.  
18.	Mr Poulier’s evidence was that he asked the appellant to contact her.  It is clear from Heidi Merryweather’s evidence that the appellant therefore knew where she lived and could have contacted her.  There was therefore no reason why that address could not have been given to Mr Poulier for him to obtain a statement from her.  There is therefore no reasonable explanation for the failure to take a statement from her prior to her departure for the United States on 1 July 2002.
19.	It was Mr Poulier’s evidence that he did not receive final confirmation from the Crown Prosecution Service that Heidi Merryweather was not going to be called as a witness by the Crown until 12 July 2002; however from his evidence it was clear that he was trying to find her from the end of April.  We therefore consider the fact that the Crown Prosecution Service did not give final confirmation until the 12 July 2002 irrelevant to the failure to take a statement from her.
(2) The period after 1 July 2001
20.	It is clear that Miss Merryweather was in the United States from 1 July 2002 until 10 October 2002, 12 days before the trial started on 22 October 2002.  It is not therefore surprising that the attempt made by Mr Poulier to trace her on his own during this period met with no success.  However, Mr Poulier, as an experienced solicitor, knew that the Crown Prosecution Service had the address of Heidi Merryweather which she would have provided when her statement was taken and would have attempted to assist in tracing her. His  evidence was that he did not want the Crown to know that the defence was considering calling her.  It was for that reason therefore he did not ask the Crown Prosecution Service for her address or seek their assistance in tracing her.  It was, of course, open for him (as it is for any defence solicitor) to take that view, but if that view is taken, as it was by him, no complaint can be made that the witness could not be traced for the trial.
21.	Mr Poulier had known from the preceding November that Heidi Merryweather was on the list of prosecution witnesses; he had some time thereafter received her witness statement. The tactical consideration of which Mr Poulier gave evidence cannot excuse the failure to trace a witness through asking assistance of the Crown Prosecution Service.  Mr Poulier’s failure therefore to seek the assistance of the Crown Prosecution Service in tracing Heidi Merryweather provides a further ground for concluding that there was no reasonable explanation for the failure to call her at the trial.
22.	When Heidi Merryweather returned to the United Kingdom on 12 October 2002, she was 8 months pregnant and did not return to the residence of those employers at which she had lived.  She was not contacted prior to the trial starting or during the trial.  Again although it may have been difficult for Mr Poulier to find her without the assistance of the Crown Prosecution Service, again the failure to contact the Crown Prosecution Service provides no reasonable explanation for the failure to adduce the evidence at the trial.
23.	On 13 November 2002 the appellant was convicted.  Mr Poulier was thereafter told by friends of the appellant that they wished to try and trace Heidi Merryweather in the hope that she would be able to provide material evidence which might assist in the appeal against conviction.  Her telephone number was provided to Mr Poulier and Mr Poulier was told that a friend of the appellant had spoken to her.  Attempts were made to arrange meetings, but either Miss Merryweather did not return calls or did not keep appointments or made clear that she did not want to assist.  We do not attach great importance to her equivocation at this time as she had given birth to a child on the 28 November 2002.  
24.	On 18 December 2002 Mr Poulier took a statement from Heidi Merryweather; she swore an affidavit subsequently on the 21 March 2003.  Although we do not attribute any significance to the delay in finally obtaining a statement from her so, for the reasons we have already given, we do consider that there was no reasonable explanation for the failure to call her evidence at the trial.
The evidence of Heidi Merryweather 
25.	We decided we would permit Miss Merryweather to give evidence before us de bene esse so that we might consider, in accordance with the principles set out in R v Pendleton [2001] UKHL 66, whether her evidence was capable of belief.  In the course of her evidence the original statement that she had made to the police on 4 October 2001 and parts of her affidavit were put to her.
26.	Her evidence was that whilst a live-in nanny she had got to know A about 18 months prior to 1 September 2001.  Her evidence during her examination in chief to us was that A had introduced the appellant to her 1 month after they first met; that when she saw A and the appellant together at private parties at clubs, A wanted to be with him and was very protective of him; that A spoke about the appellant a lot and as a good friend of hers; that when she had been invited to a private party by the appellant but A had not been, A was annoyed.  However in her statement on the 4 October 2001, she had stated that she had only met the appellant on two occasions although in her oral evidence to the court she corrected this to three.
27.	As we have already set out in paragraph 17 the appellant visited her on one Sunday in April 2001 and they had sexual intercourse; however in her statement on the 4 October 2001, she had stated that although a consensual sexual encounter took place, they did not have sex together.  When that part of her statement was put to her in cross-examination, she accepted that it was untrue, but gave as an explanation that she did not want A to read of their having sexual intercourse.  That was an untruthful answer because it was the evidence of A given at the trial and Heidi Merryweather’s evidence to us that A had been told that the appellant had had sexual intercourse with Heidi Merryweather.
28.	It was Heidi Merryweather’s evidence given in examination in chief to us that the appellant had told her that A had “tried it on with him” and that he had had sex with A and that A had wanted it; he had asked her not to tell A.  She had then rung A and told A what had been said by the appellant.  A was very angry and had told her that both had wanted to have sex.  Nothing had been said about rape.  Then about a week later A had telephoned her and had told her that what A had said on the last occasion was not true; that the appellant had raped her.  She asked A why she had not told her this before and A had said A had thought she would tell everyone; A wanted to go to the police on her own.  About a week later she visited A at her flat.  A told her that the police had taken her trousers for evidence but on that occasion A did not say anything more and did not go into any further details.  A wanted her to support A.  A wanted her to go to the police and say that A had told her that the appellant had raped A; she would not do that as, as far as she was concerned she had understood that both had consented.
29.	Heidi Merryweather’s account in her statement on the 4 October 2001 was very different; her explanation of her account in that statement was that she had been vague as A had been a good friend.  In that statement the first mention she had made of a discussion with A of what had happened between A and the appellant was that on 24 September 2001 she had met with A after she had been on holiday and they went back to A’s flat; she had stated that she could not be exactly sure but A had told her that the appellant had taken off her trousers; she did not know if that was against A’s will or not and A had told her A had reported it to the police.  When cross-examined about this, she said that A had told her that they had had sex together and had said that nothing untoward had happened.
30.	In her statement of 4 October 2001 Heidi Merryweather had also said that she had stayed at A’s flat on the night of 25 September 2001 and had been woken up by A; A was crying and told her that the appellant had telephoned her; A would not speak to her about what had been said.  On the following morning she told A she did not want to speak about it anymore, as she did not want to get involved.  When cross-examined about this, she said that A had said A was going to drop the charges as she was unsure what had happened.
31.	When cross-examined about the evidence referred to in paragraph 6 and 28, Heidi Merryweather stated that she had been told by the appellant that A had tried it on with him last night and he had told her they had then had sex.  She had thereafter telephoned A and told her that the appellant had told her that A had tried it on with him last night.  A’s response was that they both decided to have sex together. The appellant was angry with her for telling A.  She went on then to accept that A had told her that the appellant had initiated sex.  Her still further account was set out in her affidavit which was also put to her in cross-examination.  In that account Miss Merryweather had said that the appellant had told her that he had met A the previous evening and that she had “come onto him” but that nothing had happened between them because he would not reciprocate A’s advances.    The appellant asked her not to tell A that he had disclosed this to her.  She had then called A and told her that she had heard from the appellant and despite her assurances to him, she told A what the appellant had told her regarding A coming onto him and him not reciprocating.  When that was put to her, she accepted that it was true but said that she had forgotten to say that A had told her that both wanted sex.
32.	A yet further version was given in her affidavit of 21 March 2003. In that she stated that the appellant had told her that he had met A on the previous evening and that she had “come on to him”, but that nothing had happened between them because he would not reciprocate A’s advances. The appellant asked her not to tell A that he had told her this; she agreed not to do so. She had then called A and told her what the appellant had told her regarding A’s coming onto him and him not reciprocating. There had then been a further conversation later that day when A had rung her and been very angry with her during which A had told her that the appellant had told A that they should both delete his phone number and that he wanted nothing to do with either of them. When this was put to her in cross examination she said this was true.  In her statement she had said that A had told her about a week later that A was making an allegation of rape against the appellant, but that when she was at A’s flat about two weeks after that A had told  her that A had had consensual sexual intercourse with the appellant, but had also maintained that he had raped her.
Conclusion
33.	Having regard to the evidence which we have briefly summarised and making every allowance for the circumstances in which Heidi Merryweather was in when she returned from the US pregnant and without employment, we came to the clear conclusion that the evidence of Heidi Merryweather was incapable of belief by any jury.  Her differing accounts demonstrated that her recollection was so unreliable that no credence would be placed upon it by any jury; indeed we are sure that the truth lay in her original statement to the police and what she said in her affidavit of 21 March 2003 and to us was a fabrication designed to assist the appellant after he had been convicted.  We are sure that any jury would have reached the same conclusion. We reject as untruthful her evidence that she had only come forward after the trial, because she did not believe at the time that A would go through with her complaint. We are sure that, because of the circle of acquaintances within which she moved in the clubbing scene, she would have known from October 2001 that the appellant was charged with the rape of A; she had not then come forward because, as she has said in her statement of 4 October 2001, there was no relevant evidence that she could give.  We are quite sure that her account that A had told her after 1 September 2001 that the appellant and A had had consensual sex together was a lie; no such statement had been made by A.  If it had been, she would have mentioned it in her statement of 4 October 2001 and, knowing the gravity of the charge against the appellant, she would have come forward to give that evidence.
34.	Although therefore, as we have stated, we heard the evidence of Heidi Merryweather de bene esse, we have concluded that there was no reasonable explanation for the failure to adduce the evidence at the trial and that, in any event, the evidence of Heidi Merryweather was not capable of belief by any jury. We are sure that, if the evidence had been given at trial, it would not have affected the decision of the jury to convict or made any difference whatsoever; we are satisfied that the conviction was safe.  For those reasons therefore the sole ground of appeal against conviction fails.
Appeal against sentence
35.	The single Judge granted the appellant leave to appeal on the costs orders made but refused leave to appeal against the sentence of 6 years imprisonment imposed.
36.	The appellant was at the time of sentence some 28 years of age; he was of good character, he had been brought up in a settled and happy family environment, he had graduated in law and marketing from Luton University and obtained a job with a marketing company in London.  He was employed as Business Manager of Meltrack Marketing Company and worked on a part-time basis in connection with nightclubs.  He lived with a partner by whom he had a 10 month old child.
37.	It is clear that A had been significantly affected by her rape by the appellant.  It is not necessary to set out the details, but she had thereafter found it difficult to maintain relationships not only with her family but also with her contemporaries.  Her work had been affected by the attack and she was undergoing counselling on a regular basis.  She had had a number of days off work and could not concentrate properly.
38.	The Judge described the appellant as having a “streak of sexual arrogance which had destroyed the apparently misguided faith confidence and trust” that the victim had placed in him.
39.	It was for that reason and because of the impact of what had happened upon A that the Judge had sentenced him to 6 years imprisonment.  Although the Judge was obviously right in taking into account the degree of harm to the victim, it was also necessary for him to take into account the other circumstances surrounding the rape.  There were no aggravating circumstances surrounding the offence; indeed it was common ground that the penetration was limited and the appellant had desisted early on.  Taking those matters into account and balancing them against the impact on the victim, the Judge was wrong in principle to have departed from the 5 year starting point for this type of rape: R v Milberry [2003] 2 Cr. App. R (s) at para. 19.
40.	Accordingly we gave the appellant leave to appeal against the sentence of 6 years imprisonment, treated the hearing as a hearing of appeal and quashed the original sentence of 6 years imprisonment and substituted for it a period of 5 years imprisonment.
41.	In addition to imposing a sentence of 6 years imprisonment the Judge ordered that the appellant should pay the sum of £20,000 towards the costs of the prosecution and pay the whole of the defence costs which amounted to the sum of £37,000.
42.	It appeared that the Judge made no enquiry into the means of the appellant before making these very substantial orders; the pre-sentence report indicated that he earned in excess of £25,000 a year which was spent on the repayment of the mortgage and other household and personal expenses and that he did not have any financial worries.  No enquiry beyond that, we were told, was made.
43.	There was before us a detailed affidavit from Mr Poulier in relation to the income and assets of the appellant.  It is clear from that detailed evidence, that his income was substantially expended in meeting his mortgage and other payments, that in his current account there was only £3,000 at the time of his arrest and that the amount that he owed by way of student loans almost was equivalent to this.  Although there was undoubtedly some equity in the home he had purchased with his partner, that equity could not be released without the sale of that home; that would have rendered the appellant’s family homeless.
44.	In the circumstances the Judge should not have proceeded to make an order without some proper enquiry into the means of the appellant.  We are satisfied that, if he had done so, it would have been clear that the appellant did not have the means to pay the prosecution costs or the costs of his own defence.  We therefore set aside the orders made by the Judge and make no order against the appellant in respect of the costs of this appeal.
45.	In the result therefore we dismissed the appeal against conviction, and allowed the appeal against sentence to the limited extent that we reduced his sentence of imprisonment from 6 years to 5 years and quashed the orders that were made at the trial for the payment of the prosecution and defence costs.