Smith, R. v

A submission of no case to answer fails where the evidence, taken at its highest, could properly permit a jury to find the essential element of the offence proved. In an allegation of assault by penetration, the legal meaning of vagina includes the vulva and slight penetration suffices.

A summing-up is not unsafe merely because it contains a blemish or does not repeat every defence argument. The question is whether the jury were adequately directed on the burden of proof and the issue in dispute. Improper judicial criticism of defence counsel requires an overall assessment of whether it created a real risk of unfair prejudice to the accused.

The appellant appealed, with leave of the single judge, against convictions in the Crown Court at Croydon for three rapes, assault by penetration and causing a person to engage in sexual activity.

He maintained that the sexual activity with each complainant was consensual. The appeal challenged the refusal of a submission of no case to answer on the assault-by-penetration count, the trial judge’s treatment of defence counsel, and the content and tone of the summing-up.

The central issues were whether the evidence was capable of proving penetration and whether the conduct of the trial, considered as a whole, rendered the convictions unsafe.

1. Appeal dismissed. The evidence on the assault-by-penetration count was capable of supporting a conviction by a properly directed jury. Although the complainant’s account varied as to whether the appellant’s fingers entered her vagina, there was evidence capable of corroborative support from her later complaint, the recording produced by the appellant, and injury in the vaginal area.
2. The legal definition of vagina includes the vulva, and slight penetration is sufficient. The evidence was not conclusive and was open to rebuttal, but that was a matter for the jury rather than a basis for withdrawing the count.
3. The summing-up contained a blemish because it did not expressly direct the jury to treat inconsistent evidence with caution if an explanation was rejected. It did, however, repeatedly identify the inconsistencies, state that the Crown had to make the jury sure, and focus the jury on consent. The omission could not compromise the safety of the convictions. The judge was also entitled not to repeat every defence submission, and the correction of the error concerning text messages was sufficient.
4. The judge was entitled to intervene when defence counsel put disputed words from a recording to the appellant. He was nevertheless wrong to shout an instruction and to accuse counsel, before the jury, of knowingly failing to play by the rules. The Court assessed the effect in the context of the four-week trial. The episodes were brief, the jury received reassurance that the exchanges did not reflect on the appellant, the trial thereafter proceeded normally, and the summing-up treated defence counsel and her submissions with proper respect.
5. There was therefore no real risk that the jury had been unfairly prejudiced against the appellant or that counsel’s standing had been so undermined as to render the trial unfair. The Court considered R v Lashley [2005] EWCA Crim 2016 and R v Cordingly [2007] EWCA Crim 2174, but emphasised that such cases turn on their particular facts.

• Court of Appeal (Criminal Division). In [2017] EWCA Crim 895, the court dismissed the appeal against conviction.
• Crown Court at Croydon. On 11 August 2016, the appellant was convicted of three counts of rape, one count of assault by penetration and one count of causing a person to engage in sexual activity.