Leaver, R. v, Court of Appeal - Criminal Division, November 10, 2006, [2006] EWCA Crim 2988

Issuing Organization:Criminal Division
Actores:Leaver, R. v
Resolution Date:November 10, 2006
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SMITH BERNAL WORDWAVE

No: 2005/04725/B2

Neutral Citation Number: [2006] EWCA Crim 2988

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2

Friday, 10th November 2006

B E F O R E:

LORD JUSTICE TUCKEY

MR JUSTICE HOLMAN

MR JUSTICE HODGE

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R E G I N A

-v-

JON ANDREW SCOTT LEAVER

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MR M COGAN appeared on behalf of the Appellant

MR R PLATTS appeared on behalf of the Crown

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J U D G M E N T1. MR JUSTICE HOLMAN: This is an appeal against conviction by leave granted by the full court.

2. The appellant, Jon Leaver, is now aged 24. On 19th August 2005 in the Crown Court at Liverpool, before His Honour Judge Boulton and a jury, he was convicted on two counts. Count 1 was rape. Count 2 was causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. He was sentenced to 14 years' imprisonment on each count, to be served concurrently.

3. Although there were two counts, there was one victim and the facts comprise a single overall episode, albeit that it occurred in two distinct stages. Rather unusually, the whole of the first stage of this episode, namely the alleged rape, was captured on various CCTV cameras, and indeed the appellant even photographed and recorded a part of the rape upon his own mobile telephone. From this material a video was compiled which was available to the jury and watched by them several times, including after retirement.

4. The essential facts in outline were that on 19th February 2005 the complainant, KD, had gone out for the evening with two female friends. At about 11.00pm she and her friends went to a nightclub in Leigh, where she met the appellant. They left the club together at about 1.50am, and apparently the intention was that the complainant would get a taxi. However, she was unable to find one, and so she and the appellant walked together to the nearby bus station. Here, the appellant performed oral sex upon the complainant whilst she sat on a bench in a bus shelter. All of this was plainly visible on the CCTV and the video that was made from it.

5. After this, they walked together to what was described as a delivery yard at the rear of a shop, and further sexual activity took place. After a while, they began to have full vaginal sexual intercourse. This, too, was visible on the CCTV and the video, and it was not in dispute that all the sexual activity so far, including the sexual intercourse, was entirely consensual. The evidence of the complainant and the case of the prosecution was that after sexual intercourse had been taking place for about five minutes, the appellant began to become very rough. As a result, on the evidence of the complainant, she clearly withdrew her consent, saying "no, no", but the appellant continued with increasing roughness with the sexual intercourse, thereby raping her.

6. After that part of the episode ended, the appellant carried the complainant a certain distance away from the scene of the alleged rape. By a combination of being carried and also each of them walking, they seem to have ended up in an alleyway. We have been told today by Mr Platts, on behalf of the Crown, that about 15 minutes elapsed between the end of the sexual intercourse and the alleged rape, and the events which we are now about to describe.

7. The complainant said that after they arrived at the alleyway, the appellant threw her down and told her to "suck [his] dick". She refused to do so, whereupon he punched her several times in her face with his fist. As a result of the attack, she sustained serious facial injuries, including two fractures to the jaw, damage to her teeth, and extensive swelling around her face and head. The appellant ran from the scene.

8. It was that attack which took place in the alleyway that constituted count 2, causing grievous bodily harm with intent. Mr Platts has made plain to us today that, although once the sexual intercourse developed into rape there was a degree of violence by the appellant upon the complainant, that violence was all, as it were, integral to count 1, the rape, and not at all encompassed within count 2, causing grievous bodily harm with intent.

9. The case of the appellant in relation to count 1 was that the complainant had never withdrawn her consent to the sexual intercourse, or that if she had done so, he nevertheless reasonably continued to believe that she was consenting. His defence in relation to count 2 was that he had not intended to cause such serious injury, and that therefore he lacked the requisite intent for an offence under section 18. He fully admitted to the jury that he had punched her, and indeed when he gave his evidence he agreed that he had punched her six times.

10. The complainant gave evidence at trial. She described how they had walked to the bus station and had there engaged in the oral sex. She agreed that it was as depicted on the video tape, and that it had been consensual. She said that after that ended the appellant suggested they go somewhere "a bit quieter". She knew that sexual intercourse would take place and she was consenting to it, indeed she gave the appellant her phone number. She said that after the sexual intercourse began, she felt that she was falling backwards over a wall that she was leaning against and she started to say "no, no". The appellant pulled her hair. She told him to stop, and that he was hurting her. He then put his hands around her neck. She had...

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