Cela, R. v

Factual and Procedural Background

On 6 August 2021, after a trial in the Crown Court at The City, the Applicant was convicted of one count of rape and sentenced to 8 years' imprisonment by the trial judge. An application for leave to appeal against conviction was filed on 27 February 2023, 523 days out of time, along with an application for an extension of time. These applications were refused by a single judge and have now been renewed.

The case involves the Applicant and a complainant anonymised as "C" under the Sexual Offences (Amendment) Act 1992. On the evening of 29 December 2018, the Applicant went out with two male friends, "M" and "A". They met a group of three women including "C", her flatmate "E", and "V", an ex-girlfriend of the Applicant. After spending time at a pub and bar, the group went to C and E's home. C and M went upstairs to C's bedroom where they had consensual sex.

The prosecution alleged that the Applicant went upstairs, saw C and M having sex, and later, when C was asleep and alone, penetrated her vagina without consent first with his fingers (count 1) and then with his penis (count 2). Witness E saw the sex under the covers and told the Applicant to stop. C later gave a video-recorded interview stating the sex was non-consensual.

The prosecution relied on C's interview and E's testimony. The Applicant's defence was that C consented or that he reasonably believed she consented. He denied watching C and M have sex, claiming he stumbled into the bedroom looking for the bathroom, later asked M for permission to have sex with C, and then had consensual sex with her. E’s interruption and C’s withdrawal of consent were acknowledged. No other defence witnesses were called.

The judge directed the jury on the law and evidence without criticism. The jury acquitted the Applicant on count 1 but convicted on count 2 by a majority verdict.

Legal Issues Presented

1. Whether the conviction is unsafe due to inconsistency with the acquittal on count 1.
2. Whether the Applicant's defence team was culpably negligent for failing to call an important witness, "M", who was available and willing to support the defence.

Arguments of the Parties

Appellant's Arguments

• The conviction is unsafe because it is inconsistent with the acquittal on the first count of digital penetration.
• The defence team failed to call "M", an important witness, which constituted incompetence affecting the safety of the conviction.
• In oral submissions, the second ground was presented as an adjunct to the first, conceding it would not alone justify leave to appeal.
• Argument that the judge's directions may have misled the jury into treating the two counts as dependent rather than separate offences.

Respondent's Arguments

• The delay of 18 months in advancing the first ground of appeal was unjustifiable.
• The decision not to call "M" was a reasonable, informed strategic choice by competent counsel, given mixed and potentially damaging statements from "M".
• The jury was correctly directed to consider each count separately; the verdicts were capable of rational explanation and not inconsistent.
• The case was not analogous to precedent where inconsistent verdicts were found unsafe.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Day [2003] EWCA Crim 1060	Standards for allowing appeals based on alleged incompetence of trial counsel: counsel’s conduct must be outside reasonable competence and cause trial unfairness.	The court applied this test and found the defence team's decision not to call "M" was a reasonable risk assessment and not incompetent.
R v Fanning [2016] EWCA Crim 550; [2016] 2 Cr App R 1	Appeals on inconsistent verdicts succeed only if no reasonable jury could have reached such verdicts.	The court determined the verdicts were not so inconsistent as to require interference, given the different evidence on each count.
R v Mundle [2024] EWCA Crim 1289	Requirement that if defence disagrees with standard jury directions on separate counts, they must request different directions.	The court noted that defence counsel did not seek different directions and that the jury was properly directed to consider counts separately.
R v Sham [2016] EWCA Crim 1649	Exceptional case where guilty verdict was found inconsistent with acquittals and thus unsafe.	The court found this case distinguishable and not analogous, rejecting the argument that the verdicts were inconsistent.

Court's Reasoning and Analysis

The court first considered the delay in filing the appeal and found the explanation for the 18-month delay on the first ground of appeal unsatisfactory and unjustifiable. The delay on the second ground, relating to defence counsel's conduct, was acknowledged but still considered excessive.

Regarding the failure to call witness "M", the court examined the available statements and trial counsel’s strategic decision. It concluded that counsel took reasonable steps, including obtaining a proof of evidence and advising the Applicant, who then gave clear instructions not to call "M". The court rejected the argument that this decision was incompetent or unfair.

On the alleged inconsistency of verdicts, the court noted that the jury was properly directed to consider each count separately and that the evidence differed between counts. The acquittal on count 1 and conviction on count 2 were rational and explicable. The court rejected the submission that the judge’s directions misled the jury into treating the counts as dependent.

The court distinguished this case from precedent where inconsistent verdicts led to quashing convictions, emphasizing the factual and evidential differences here.

Holding and Implications

The renewed application for leave to appeal against conviction is refused.

The court's decision directly affects the Applicant by denying the extension of time and leave to appeal, thereby upholding the conviction and sentence. No new legal precedent was established, and the ruling confirms established principles regarding appeal timing, counsel competence, and evaluation of inconsistent verdicts.