Lewis, R. v

A conviction on one count is not unsafe merely because a jury cannot agree on related counts arising from the same sexual encounter. The appellant must show that the outcomes are logically inexplicable: no properly directed reasonable jury could have reached them. The jury may accept parts of a complainant’s evidence while remaining unsure about others.

Legal directions are mandatory, but a written steps-to-verdict document is an aid rather than a compulsory format. Fresh evidence should not be admitted where there is no reasonable explanation for failing to adduce it at trial, or where it is speculative, immaterial, or incapable of affecting the safety of the conviction.

The applicant was convicted at the Crown Court at Kingston upon Thames of anal rape and sentenced to four years’ imprisonment. The jury could not reach verdicts on counts of vaginal and oral rape.

He applied out of time for permission to appeal against conviction. He alleged logically inconsistent verdicts, misdirection on consent and the steps-to-verdict document, defective disclosure from the complainant’s telephone, and sought to adduce fresh medical evidence concerning injuries and the effects of Roaccutane. He also relied on the cumulative effect of those matters.

The central question was whether any individual ground, or their combined effect, rendered the conviction unsafe.

1. The court granted an extension of time but refused permission to appeal. The conviction for anal rape was safe.

2. The jury’s conviction on the anal-rape count and inability to agree on the oral- and vaginal-rape counts were not logically inexplicable. The applicable threshold was high. The evidence concerning anal intercourse was materially distinct: the complainant’s contemporaneous accounts to friends and family focused on it, and the jury were entitled to regard it as a separate event. The medical evidence was neutral and did not explain the differing outcomes. Applying the guidance in R v Formhals [2013] EWCA Crim 2624 and R v Fanning [2016] EWCA Crim 550, the applicant had not discharged the burden of showing that no reasonable jury could have reached those outcomes.

3. The Recorder had not withdrawn consent from the jury. The written steps-to-verdict document required the jury to be sure both of absence of consent and absence of reasonable belief in consent. The summing-up repeatedly identified consent as the central issue. Asking whether the jury accepted the complainant’s account properly placed that issue in its factual context; if they were sure that the violent anal intercourse described had occurred, consent and reasonable belief in consent could not arise.

4. The Recorder’s description of the steps-to-verdict document as a guide was not a misdirection. The document was an aid to deliberation, while the legal directions remained compulsory. Read with the summing-up as a whole, the jury would have understood that they needed to address the listed questions.

5. The proposed fresh medical evidence did not assist. The injury evidence remained neutral. The generic evidence about Roaccutane lacked a reasonable explanation for not having been adduced at trial, failed the requirement in section 23(2)(d) of the Criminal Appeal Act 1968, and was speculative and immaterial. It could not affect the verdict.

6. The undisclosed earlier messages were potentially admissible but peripheral. They did not undermine the complainant’s account, explain a relevant injury, or provide a credible basis for challenging her reliability. Neither those messages nor the cumulative effect of all grounds created doubt about the conviction’s safety.

• Court of Appeal (Criminal Division) Granted an extension of time but refused the referred application for permission to appeal against conviction.

• Crown Court at Kingston upon Thames On 11 September 2018, the applicant was convicted of anal rape and sentenced to four years’ imprisonment. The jury did not reach verdicts on the vaginal- and oral-rape counts.