R v R CA243/04

The appellant, in this case, sought leave to appeal out of time against his conviction by a jury in May 2000 on one count of rape, three counts of sexual violation by unlawful sexual connection, and one count of indecent assault. Each of these charges was laid representatively. The appellant also appealed, by way of rehearing, against the effective total sentence of 10 years imprisonment imposed for that offending. The original appeal against sentence was filed on 26 June 2000, but the appellant was declined legal aid at that time and his appeal was determined on the basis of written submissions. The appellant argued that had legal aid been granted to him at that time, he would have had the opportunity of discussing his case with counsel and would have pursued an appeal against conviction. The Crown did not oppose leave to appeal against conviction being granted out of time, and the court was satisfied that leave should be granted.

The court was required to decide the following legal issues: first, whether the trial Judge’s summing up was unbalanced and lacked fairness; second, whether the trial Judge erred by permitting opinion evidence to be led relating to the victim’s intellectual capacity; and third, whether the trial Judge misdirected the jury in relation to that evidence. The court had to determine whether these issues, if present, led to a miscarriage of justice.

The court found that the trial Judge’s summing up, although robust, accurately identified the central issues for the jury and focused their attention upon them. The Judge gave all the necessary legal directions and clearly identified the issues of fact that the jury were required to determine, making it plain that it was for them to determine those issues. The court found no basis for the suggestion that the summing up was unbalanced or lacked fairness. The court also found that the evidence given by the victim’s teacher, the principal of her school, and Dr Greaves, a clinical psychologist, was unchallenged and that the trial Judge was entitled to indicate to the jury that weight could be attached to the collective evidence of these expert witnesses. The court concluded that the trial Judge had fairly reflected the overwhelming nature of the Crown’s case, whilst also making plain what the defence response to that was.

The court also found that the sentence of 10 years was not manifestly excessive. The trial Judge correctly assessed the starting point as eight years imprisonment for a contested rape after a defended hearing and added a further two years, which was appropriate given the significant aggravating features of gross breach of trust, duration of offending, and the age and intellectual disparity between the appellant and the victim.

The appeal against conviction out of time was granted, but both the appeals against conviction and sentence were dismissed.