Anonymized Summary of Criminal Appeal Opinion

Factual and Procedural Background

On 15 March 2024 the Appellant was tried by jury at The Court and convicted of rape (count 1) and assault occasioning actual bodily harm (count 2). He was acquitted of a single count of intentional strangulation (count 3). On the same day the Appellant was sentenced by Judge Mooncey to 15 years' imprisonment on count 1 and 18 months' imprisonment on count 2, to run concurrently.

The Appellant appealed by limited leave on a single ground: that the trial judge had erred in admitting certain bad character evidence in the form of text messages recovered from the Appellant's mobile phone which had been exchanged with multiple sex workers in the days preceding the index events. The appeal was heard and dismissed; the opinion sets out the reasons for that dispositional outcome.

The underlying factual narrative at trial was that, on the night of 3–4 March 2023, the complainant left The Nightclub intoxicated and was later in the Appellant's car. She had no recollection of how she came to be in the Appellant's vehicle. The prosecution's case was that the Appellant had been driving around areas where street sex workers are known to be, that he stopped and invited the complainant into his car (she believed he was an arranged ride), drove to a quiet location and sexually and physically assaulted her for about 35 minutes, after which the complainant escaped. Witnesses and a police officer saw the complainant in a distressed state soon afterwards; later police recovered the complainant's phone, clothes and the Appellant's soiled clothing. Forensic testing recovered a mixed DNA profile on the Appellant's underwear and vomit-staining on his outer clothing that the expert linked to the complainant.

The Appellant denied sexual activity throughout, both in pre-trial interviews and at trial. He gave evidence that the complainant had acted erratically, had made sexual advances and self-harmed, and that any injuries were self-inflicted or accidental in the course of trying to eject her from the car. The defence case at trial was denial of the sexual offending.

Legal Issues Presented

1. Whether the trial judge was wrong to admit, as bad character evidence, the bulk of the text messages recovered from the Appellant's phone (exchanged with sex workers) under the gateway in section 101(1)(d) of the Criminal Justice Act 2003 (i.e. whether the material was relevant to an important matter in issue and not excluded by the provisions of the Act).
2. If the admission was erroneous, whether the convictions nevertheless remained safe in all the circumstances (i.e. whether any error was materially prejudicial to the safety of the convictions).

Arguments of the Parties

Appellant's Arguments (as presented by Attorney Baines)

• The messages were exchanges with sex workers about consensual, paid sexual activity and therefore materially different from the non-consensual conduct alleged in the indictment.
• References in the messages to "rape" and to degrading sexual practices (including urination and defecation) were either fantasy or role-play requests to consenting sex workers and did not demonstrate a real-world propensity to commit rape.
• There was no evidence the complainant was a sex worker or that the Appellant believed she was one; therefore the messages were of limited (if any) relevance to the alleged offending.
• The prejudicial effect of the extreme and salacious elements of the messages outweighed any probative value and the material should have been excluded under the fairness provision (section 103 of the Criminal Justice Act 2003).
• The judge failed to specify with sufficient precision the exact propensity or tendency that the messages were said to show, and the jury directions risked inviting the jury to treat the communications as showing a tendency to rape, which was an unfair stretch.

Prosecution's Arguments (as presented by Attorney Rose)

• The messages were admissible under section 101(1)(d) because they were relevant to an important matter in issue: (a) the reason why the Appellant was driving around The City that night (whether he was looking for sex or merely having "me time") and (b) the Appellant's mindset and sexual proclivities (a liking for rough oral sex, without condom, and sexual practices involving force) which the prosecution relied on to explain why the Appellant would have engaged in the acts alleged.
• The jury required access to the full picture of the Appellant's communications to understand the prosecution case and to assess credibility; editing out the more extreme messages would hinder the jury's ability to assess the Appellant's state of mind.
• Any prejudicial effect did not outweigh the probative value; alternatively, the prejudice was not sufficient to require exclusion, and jury directions could manage any residual risk of unfairness. The acquittal on the strangulation count was offered as evidence that the jury were not unduly prejudiced by the messages.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court accepted the prosecution's submission that the messages were admissible under the section 101(1)(d) gateway because they were relevant to two distinct important matters in issue in the trial (subject to any exclusion under section 103):

1. Relevance to the Appellant's conduct that night: The messages showed the Appellant had a history of engaging with sex workers, offering to meet them in his vehicle and discussing sexual practices. That background was relevant to the factual dispute about why he was driving around The City and supported the prosecution's case that he was cruising for sex rather than merely having "me time."
2. Relevance to the Appellant's mindset: The messages provided evidence of the Appellant's sexual preferences and fantasies (including a liking for rough oral sex and certain unusual practices). The prosecution were entitled to rely on that material to argue that the Appellant's mindset made it less likely that the events as described by the Appellant were true and more consistent with the prosecution's account that he had sexually assaulted the complainant in the manner alleged.

The Court reviewed the trial judge's decision-making. The trial judge had given two principal reasons for admitting the material: (1) the content went beyond merely financial arrangements and included expressions of desire for forceful sexual practices arguably related to the acts alleged (forceful oral sex with a stranger); and (2) the material supported the prosecution's account that sexual matters were on the Appellant's mind that night, corroborating his conduct of driving about and showing interest in street sex workers.

On exclusion under section 103, the Court agreed with the trial judge that, although some of the messages contained extreme content (e.g. references to urination, defecation and to "rape" in messages to sex workers), the probative value of the body of messages as a whole outweighed any unfair prejudice. The trial judge had directed the jury on how to approach the material and had explained that the messages could only be used if the jury were satisfied they established the relevant tendency, and even then they could only be part of the evidential picture.

The Court acknowledged some shortcomings in the directions: it noted that the judge at one point suggested the messages could establish a tendency to commit rape (which went beyond the prosecution's nuanced reliance on the material), and that the judge might have more precisely explained the particular mind-set or propensity the messages were said to show and cautioned explicitly against being swayed by extreme elements. Nevertheless, the Court found that these issues did not render the trial unfair overall and were not matters pursued under the single ground of appeal.

On the alternative question of safety, the Court analysed the other strands of the prosecution case and concluded that the evidence against the Appellant was strong. The Court summarized the principal evidential strands relied upon at trial:

• The complainant's consistent account of the essential elements of the attack and the presence of injuries consistent with that account.
• Recorded contemporaneous and subsequent accounts (including ABE interviews) in which the complainant described force being used and sexual activity consistent with the prosecution case.
• CCTV, ANPR and mobile phone evidence placing the Appellant driving in areas associated with sex work, stopping when the complainant left The Nightclub, remaining stationary for the relevant period, and later movements consistent with returning towards the Appellant's home; recovery by police of the complainant's phone from the Appellant's residence and of the complainant's clothing from the Appellant's car.
• Independent witness evidence of the complainant emerging almost naked and distressed from the Appellant's vehicle.
• Forensic evidence that a mixed DNA profile on the Appellant's underwear contained the complainant's DNA, together with vomit-staining on outer clothing matching the complainant, which the expert considered supportive of the proposition that oral sexual activity had occurred.
• The Appellant's own explanations were regarded as inherently improbable in the Court's view (for example, why he would drive to a secluded non-route home location, why the complainant would remain in a parked vehicle for 35 minutes if the Appellant's account were true, and why he had earlier driven around areas associated with prostitution and picked up another female in whom he later showed an interest).

Having considered both the correctness of the evidential ruling and, alternatively, the safety of the convictions if the ruling were considered erroneous, the Court concluded that there was no error of law in admitting the messages and, in any event, the convictions were safe given the cumulative strength of the other evidence.

Holding and Implications

APPEAL DISMISSED

Holding: The Court upheld the trial judge's decision to admit the messages as bad character evidence under section 101(1)(d) of the Criminal Justice Act 2003 and concluded there was no error of law. Accordingly, the appeal against conviction was dismissed.

Implications: The immediate consequence is that the Appellant's convictions for rape and assault occasioning actual bodily harm, and the sentences imposed by the trial judge (15 years' imprisonment on the rape count and 18 months' imprisonment on the assault count, concurrent), stand. The opinion does not identify or purport to establish any new legal principle beyond its application of the statutory gateways and exclusion provision; its practical effect is to affirm the admissibility of the particular body of communications in the circumstances described and to confirm the safety of the convictions on the facts of this case.

Note: This summary is strictly confined to the material and reasoning set out in the provided opinion and does not introduce information beyond that text.