Gallagher, R. v

A conviction on one count is not rendered arguably unsafe merely because the jury acquits on related counts arising from the same episode. The question is whether the differing verdicts can rationally be reconciled on the evidence and directions given. Where there is ample evidence capable of sustaining the count of conviction, and the jury could reasonably regard alleged repeated acts as one prolonged incident rather than separate offences, the verdicts are not arguably inconsistent.

R v Gallagher concerned a renewed application for leave to appeal against a rape conviction at Preston Crown Court. The applicant was convicted, by an 11 to 1 majority, on the first count of rape and acquitted on three further rape counts.

The complainant alleged that, during one night, the applicant raped her and then raped her three further times. The prosecution relied on her evidence, evidence from a neighbour, her later complaints to others, and the applicant’s police interviews. The defence disputed that intercourse occurred and relied on the delay in making a formal complaint and subsequent affectionate text messages.

After Holland J had refused leave on the papers, the Court of Appeal considered whether the differing verdicts were arguably inconsistent.

1. The renewed application for leave to appeal conviction was refused. The court held that it was not arguable that the jury’s conviction on count 1 and acquittals on counts 2 to 4 were inconsistent.

2. The relevant question was whether the differing verdicts could rationally stand together. They could. The conviction on count 1 was supported by ample evidence, including the complainant’s account, evidence from the neighbour, and admissions said to arise from the applicant’s police interviews.

3. The acquittals did not necessarily reject the complainant’s evidence about the first rape. Although the prosecution had charged four rapes, the jury could reasonably regard the events as one prolonged rape involving four episodes. It could also conclude that treating the episodes as four separate rapes would unfairly place an unjustified construction on the complainant’s account and expose the applicant to four separate punishments.

4. The remaining defence points had been properly placed before the jury. They did not make the conviction on count 1 arguably unsafe.

• Court of Appeal (Criminal Division) — renewed application for leave to appeal against conviction refused: [2007] EWCA Crim 256.
• Crown Court at Preston — the applicant was convicted of rape on count 1 by an 11 to 1 majority and acquitted on counts 2 to 4.
• High Court judge on the papers — Holland J refused leave to appeal conviction before the renewed application.