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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> CS & Anor, R v  EWCA Crim 339 (15 February 2001)
Cite as:  EWCA Crim 339
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Thursday 15th February 2001
B e f o r e :
MR JUSTICE CRESSWELL
MR JUSTICE OUSELEY
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MR A NUTTALL appeared on behalf of the Crown
Crown Copyright ©
"I confirm that I was obviously aware of the significance and importance potentially to both prosecution and defence of these documents [that is the medical records] and that had I received them then either the prosecution would have called such evidence to support the complainant's account or they would have been disclosed to the respective defence solicitors as unused material."
"Pausing at that the point before I come to the remaining features of this appeal, one has to ask oneself whether the verdicts of the jury, at any rate, on the counts not involving KA against these two appellants, were safe or is the evidence that she gave and the criticisms made of it such that this Court feels a larking doubt about the justice of the conviction. This Court, having considered the matter, has come to the conclusion that while these were all perfectly tenable jury points, some, as I have indicated, better than others, none was so fundamental that one could properly say that the conviction was either unsafe or unsatisfactory. The girl was cross-examined at considerable length upon all these matters by two leading counsel, and it became a matter for the jury, it seems to us, as to what credibility should be accorded to her evidence as a result.
The jury were fully appraised of the points that had been made against the girl and repeated before us in this appeal. On that part of the case, therefore, this Court is no disposed to accede to the submission made on behalf of the appellants."
"We now come to the last issue that has been raised on behalf of the appellant OS. It will be recalled that in her recital of events [the complainant] said she was raped a second time by OS after the other persons previously present in the house had departed. The argument put forward in this context was that as the evidence of rape by OS was precisely the same on count 4 of which he was acquitted as it was on count 2, the jury's verdicts are inconsistent. The evidence being in the state it was, either it convinced the jury that he was guilty of both rapes, or, if it did not, that he was guilty of neither. In the judgment of this Court that is not a fair submission to make. The circumstances of the first rape were such that each of the three defendants, in interviews with the police had acknowledged that they were present at the house when some kind of sexual activity had taken place at the expense of the girl. KA had described how he had gone into the bedroom, taking his clothes off and lay on the bed alongside her, she herself being naked, but he had claimed that he never went so far as penetration. CS describes how he had gone into the bedroom, seen KA raping the girl -- or at any event having intercourse with her -- and struck him. The third man, OS, with whom we are presently concerned, after having said he was not in the house at all admitted he was but claimed the rape had been committed by KA. That general background of events attaching to the first incident seems, in our judgment, to place the case in a different category from what took place later on when all had departed except for the victim and the aggressor."
"However, he comes on to rather stronger ground when dealing with the medical evidence, or perhaps I should say the lack of it. The complainant claimed that she had seen a doctor a few days after the incident took place, and as Mr Field-Fisher puts it by reference to the transcripts, she would be concerned not only with the injuries to her face and neck, but also to the fact that by reason of her experiences, her vagina was very sore. Indeed, in cross-examination she said as much. But, submits Mr Field-Fisher, there is no evidence from the family of these matters. Indeed, such evidence as there was which came from her sister T suggested that there was no sign of injury at that time. Furthermore, he claims there was no evidence from her school friends, and this leads to another incident.
It seems that in giving her account of these events, the complainant said that as a result of the injuries she had suffered, she was off school for a month; but the defence were able to prove by calling the head master of the school to produce the register, that she had attended school during the relevant period. It is on this basis that counsel suggests if she had these injuries to her face, they must have been obvious to some of her friends who could have been called upon to give evidence. Perhaps the most useful evidence would have been that of the doctor himself, if he could have been identified, but it now emerges that the medical records of this girl covering the relevant time have been lost."
"Perhaps the most useful evidence."
"1) A Pain on neck and shoulders and down the back. ... Not painful to breathe ..."
"2) Nerve trouble ... since father left home. Shakey losing temper. Sleeping. Eating. Not depressed. Try ..."
"Vomiting after eating today. Upper abdomen soreness ..."
"Abdomen soft. No tenderness."