Kay v R, Court of Appeal - Criminal Division, December 21, 2017, [2017] EWCA Crim 2214

Resolution Date:December 21, 2017
Issuing Organization:Criminal Division
Actores:Kay v R
 
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Case No: 201601400 B3

Neutral Citation Number: [2017] EWCA Crim 2214

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT DERBY

Mr Recorder Elsom

T20137044

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :

LORD JUSTICE SIMON

MR JUSTICE GOSS

and

HER HONOUR JUDGE WALDEN-SMITH

(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)

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Between :

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Mr Philip Rule for the Appellant

Mr Stephen Kemp for the Respondent

Hearing dates : 17th November 2017

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Judgment

MR JUSTICE GOSS :

Introduction

  1. On 23rd September 2013, in the Crown Court at Derby before Mr Recorder Elsom the applicant was convicted by a majority of 10 to 2 of an offence of rape of A. He was acquitted of two further counts of rape of a different complainant, B. On 11th November 2013 he was sentenced by the trial judge to 4 years and 6 months' imprisonment.

  2. He now applies for an extension of time of approximately 2 years and 5 months in which to apply for leave to appeal against conviction. His applications have been referred to the full Court by the Registrar.

  3. The provisions of the Sexual Offences (Amendment) Act 1992 relating to the reporting of this case apply. No matter relating to a complainant in this case shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence unless waived or lifted in accordance with s.3 of the Act.

    Facts

  4. The applicant is now 26 years of age having been born on 26th April 1991. In 2011, when aged 20, he was in a relationship with B, who was 4 years younger than him. That relationship, which had been intermittent, finally ended in December 2011. B made an allegation that the applicant had assaulted her, making a witness statement on 24th December 2011. On 26th April 2012 he was sentenced for common assault of B. Subsequently, in early August 2012, she alleged she had been raped by the applicant towards the end of their relationship on two occasions.

  5. Around the 1st of February 2012 the applicant approached the complainant A, who was also almost 4 years younger than him having been born on 11the July 1995, on Facebook. They exchanged messages on Facebook as well as their telephone numbers and arranged to meet in person. B noted the Facebook exchange and contacted A, advising her against involvement with the applicant. Nevertheless, A did meet the applicant in person after assuring B that she would be careful.

  6. On 28th July 2012, in an ABE interview, A alleged that the applicant had raped her in early February 2012 on the sofa in his living room. The applicant was arrested. When interviewed on 3rd August 2012 he initially denied knowing A, but later recalled her when her workplace was mentioned. He said that they had had consensual sexual intercourse on one occasion. In evidence, he said that he had met A on 2 occasions and had consensual sexual intercourse with her on the second and final meeting.

  7. On 3rd and 8th of August 2012, in ABE interviews, B alleged that the applicant had raped her on two occasions in December 2011. When interviewed, he denied he had raped her. In evidence, he said they had been in a sexual relationship but denied that there had been any act of sexual intercourse with B on the occasions he was alleged to have raped her.

  8. The defence case at trial was that the only plausible explanation for the failure by both B and A to report matters promptly and the inconsistencies in the evidence, to which we shall refer, had been that they had concocted false allegations for their own purposes or had influenced or colluded with each other, thus impinging on their credibility and reliability.

  9. The issues for the jury were whether, in the case of B's allegations, the acts of intercourse had taken place at all and, if so, whether they were acts of rape, and, in relation to A, whether they were sure that she had not consented and that the applicant had not reasonably believed that she had consented.

    The evidence

  10. A's ABE interview was adduced as her evidence-in-chief. She stated that the applicant contacted her on Facebook and they exchanged messages. Sometime after 1st February 2012 she met the applicant and they sat in his car and talked. On the second occasion that they met they went to the applicant's home and watched television. She had been lying on the sofa and the applicant kissed her, but she did not reciprocate. They talked and the applicant pulled her trousers down. A said she did not want to and pushed the applicant's chest. The applicant penetrated her vagina with his penis and asked her if it hurt. She told him that it did and to stop. The applicant replied ``No, just a bit more'' as he wanted to...

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