Rezart Lame [2019] EWCA Crim 729

In Rezart Lame [2019] EWCA Crim 729, the Court of Appeal refused an application for permission to appeal against convictions for rape, assault by penetration, and attempted rape.

The applicant had been convicted on 6 June 2016 following trial before His Honour Judge Williams QC and a jury of three counts of rape (unanimously as to two counts, by a majority of eleven to one as to the first count), one count of assault by penetration, and one count of attempted rape. He was sentenced to a total of nine years’ imprisonment and made subject to a sexual harm prevention order. The application for permission to appeal was made 620 days out of time.

The applicant and complainant, aged twenty-one and nineteen respectively, had met on the dating application Badoo and arranged to meet on 13 February 2014. They drank together and returned to the applicant’s flat, where they watched television, joked, and kissed. The complainant told the applicant she was a virgin. These facts were common ground. The prosecution case was that the applicant then forced the complainant to have sex, inserting his penis into her vagina, anally raping her after telling her to get onto all fours, forcing his penis into her mouth, and attempting to rape her the following morning. The defence case was that all sexual activity had been consensual, that any anal penetration was accidental, and that further consensual activity took place the next morning. The prosecution relied on evidence from a neighbour who heard sounds of sexual activity followed by pain and the word “stop”, and from the complainant’s carer concerning her distress.

The judge gave a good character direction to the jury. There were no specific character witnesses called for the defence at trial, although character witnesses did attend the sentencing hearing.

The applicant advanced two grounds of appeal. First, he contended that his former legal representatives had failed to obtain and call good character evidence at trial. Secondly, he argued that the judge had failed to give a sufficient direction on inferences under section 34 of the Criminal Justice and Public Order Act 1994.

On the first ground, Mr Justice Dingemans noted that the applicant’s legal representatives had asked him for the names of character witnesses but none were provided. The applicant maintained that he understood the legal representatives would themselves obtain the witnesses. The court accepted that different legal representatives might have reacted differently to the applicant’s failure to provide names, but held that this did not constitute a justiciable ground of appeal. Moreover, even where a good character direction had not been given, a conviction might still be safe, citing Jagdeo Singh v The States [2005] UKPC 35. In this case, a good character direction had in fact been given. The court found nothing to suggest that the failure to call a specific character witness could render the conviction unsafe.

On the second ground, the court considered the judge’s direction concerning the applicant’s failure to mention during interview a matter he relied upon at trial. The applicant gave evidence that the complainant had seemed to ask to go with him to the car wash and appeared upset when she could not do so in the morning, which might explain why she had made a false complaint. The prosecution contended this was a later fabrication. The judge directed the jury that the failure to mention this might harm the applicant’s defence if the Crown’s case called for an answer and he could reasonably have been expected to mention the matter, and the only reasonable explanation was that he had not yet thought of it. The judge further directed that if the defence argument that the applicant could not mention everything in interview was or might be right, the failure would have an innocent explanation and would not support the Crown’s case. The court held that the judge had not been required to give the standard direction that the jury must not convict wholly or mainly on the strength of an adverse inference, because in this case there was no possibility of such a conviction. The applicant was convicted on the strength of the complainant’s evidence, and the judge’s directions made clear that the jury needed to be sure of that evidence.

The court granted an extension of time to renew the applications before it but refused the original extension of time and refused permission to appeal. In short, the court found no arguable grounds of appeal, holding that the absence of character witnesses at trial and the form of the section 34 direction could not render the convictions unsafe.

Singh v The State (Trinidad and Tobago) [2005] UKPC 35
Murray v United Kingdom [1996] 22 EHRR 29