Ambit of defence counsel’s power to conduct trial in best interests of client – decisions to not apply for severance and to rely on exhibit – client’s informed consent – irrespective of such consent, client was responsible for tactical decisions made by his counsel within ambit of counsel’s power – Judge’s duty to direct on issues whether or not defence wished that direction thereon be given
D was tried on three counts. Count 1 was of raping Ms. W at a hotel on 1 May 2013. D was acquitted on this count. Count 2 was of indecently assaulting Ms. X in his apartment on 8 August 2013 while Count 3 was of raping Ms. Y in that apartment on 24 October 2013. D was convicted on these two counts. He sought leave to appeal against his convictions. The grounds of appeal put forward on his behalf were as follows. Ground 1 was that there was a lurking doubt about the safety of the conviction in respect of Ms. X because there was evidence that she might have been influenced by two former girlfriends of D’s to make a false allegation against him. Ground 2 was that there was a lurking doubt about the safety of the conviction in respect of Ms. Y because: she had gone to D’s apartment knowing that they would be alone there; she did not tell him that she did not consent to sexual intercourse; and in those circumstances, he had honest and genuine grounds to believe that the sexual intercourse between them was consensual. Ground 3 was that the Judge had erred in directing the jury to consider whether D’s WhatsApp message to Ms. Y at 23:20 hours saying, “I stopped when you asked me to stop” was “so spontaneous and so immediate as does suggest to you that he may have been telling the truth”, there being no evidence as to why there was a delay in D making that response to Ms. Y’s message at 22:16 hours in which she had said, “You should never force anyone if they are unwilling to do it”. Ground 4 was that the Judge had erred in giving the jury directions on recklessness, contrary to defence counsel’s submission, the issue not having arisen on the evidence since it was the prosecution’s case that D knew full well that Ms. X and Ms. Y did not consent, and it was not D’s case that he had mistakenly believed that they consented. Ground 5(a) was that it was a material irregularity that the three counts were tried together since the defence to Count 3 was separate and distinct from the defence to Counts 1–2; that D’s counsel at trial had failed to advise him to apply for severance and had erred in failing so to apply, thus depriving him of the opportunity to make an informed decision on severance and depriving him of a fair trial. Ground 5(b) was that, given that the prosecution did not rely on similar fact evidence, D had been subjected to impermissible and highly prejudicial cross-examination by prosecuting counsel in respect of Ms. X, the questions having been suggestive of an uncharged offence of attempting to rape her. And Ground 5(c) was that D was deprived of a fair trial by the admission into evidence in cross-examination of Ms. W and Ms. X of highly prejudicial hearsay evidence of his conduct, in particular as set out in Exhibit D4 a Facebook message, namely that he had tricked women into having sex, communicated venereal disease and violently attacked a girlfriend. The application for leave to appeal was made out of time, but the prosecution did not object to it being so made, and the Court entertained it.
Held, refusing leave to appeal, that:
- The trial proceeded as a trial of all three counts and Exhibit D4 was adduced into evidence in the cross-examination of Ms. W and Ms. X with D’s informed consent. That way of conducting the defence fell within the ambit of defence counsel’s power to conduct the trial in the best interests of his client. In any event, it would have been very difficult to succeed in an application for severance. Defence counsel was alive to the advantages and disadvantages of conducting the defence in the way in which it was conducted, which included relying on Exhibit D4. Irrespective of the fact of D’s consent, these decisions were tactical decisions in the defence case, for which decisions D was responsible.
- The lurking doubt formula must be applied with great caution; an appellate court reading papers and not seeing the witnesses must be cautious in imposing its subjective feelings for the conclusion of the jury which had the advantage of seeing the witnesses and assessing their credibility; and “lurking doubt” means not an insubstantial doubt but a substantial remaining doubt. In the circumstances, there was no merit in the grounds of appeal asserting the existence of a lurking doubt.
- The issue of recklessness did arise on the evidence. And whether or not the defence wished that a direction on recklessness be given, the Judge had a duty to give the jury such a direction.