R v Fry (David George) [2013] EWCA Crim 2337, [2013] MHLO 126
Unsuccessful appeal against conviction. Summary from judgment: "The central complaints are that his legal team (a) failed to ensure that he was mentally and/or emotionally able to decide whether or not on give evidence; (b) failed to ensure that he properly understood that an adverse inference might be drawn by the jury if he did not give evidence; (c) failed to ensure that he properly understood that if he did not give evidence the jury would have no account from him as to the allegation made by SB, given that he had declined to answer questions during his police interview about those allegations; (d) failed to make the judge aware of his mental difficulties before she decided whether or not the jury should be directed that they might, subject to various conditions, draw an adverse inference from his failure to give evidence; (e) failed to place evidence of his mental condition before the jury to explain his failure to give evidence; and (f) in the circumstances to which we have referred gave him flawed advice not to give evidence."
Transcript
Neutral Citation Number: [2013] EWCA Crim 2337
No: 201206842 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 14th November 2013
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE JAY
SIR DAVID MADDISON
R E G I N A
v
DAVID GEORGE FRY
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1. SIR DAVID MADDISON: On 16th January 2009, at the end of a re‑trial in the Crown Court at Reading, the applicant David George Fry, now 36 years old, was convicted by a jury, by a majority of ten to two in each case, of 12 counts of rape and five of indecent assault. He was subsequently sentenced to 14 years' imprisonment for each of the rapes and seven years' imprisonment for each of the indecent assaults, all of the sentences to run concurrently, by the trial judge, Her Honour Judge Zoe Smith.
2. The applicant had been tried once before. At the first trial the jury
had been unable to agree on verdicts for most of the counts but had acquitted
him of one count and convicted him of four. The Court of Appeal Criminal
Division later quashed the four convictions and ordered the re‑trial of which
with we are now concerned.
3. The applicant renews applications for an extension of time of about three
and a half years in which to apply for leave to appeal against his convictions
at the re‑trial.
4. In view of the grounds of appeal, to which we will return, the facts of
the case can be summarised quite shortly. It was alleged that the applicant
indecently assaulted and raped the two daughters of his then girlfriend with
whom he was living. The elder daughter was sexually assaulted from the age of
13 and raped from the age of 14. She was referred to at the trial, and we will
refer to her, as "LB". These offences began in or about 1999 and ended in or
about 2001, though there was not complete certainty as to the dates concerned.
They began with touching over her clothing and progressed to digital penetration
of her vagina and eventually to rape. The younger daughter, referred to as
"SB", was sexually assaulted from the age of eight and raped from the age of ten
until she was 14. Again, accepting that there was not complete certainty as to
date, the offences began in or about 1999 and ended in or about 2005. They
began with touching of her breasts and vagina and progressed to rape.
5. The allegations did not come to light until 2006. The first allegations
were made by LB and SB made her allegations some months later.
6. When interviewed by the police about the allegations of LB, the applicant
answered the questions and denied all the allegations. When subsequently
interviewed by the police about the allegations made by SB, he declined to
answer any questions.
7. Nearly all of the proposed grounds of appeal take the form of complaints
about the conduct of the re‑trial by his then legal team.
8. The first group of proposed grounds arise from the fact that, whereas he
did give evidence at his first trial, the applicant did not do so at the
re‑trial, as a result of which the judge directed the jury that if certain
conditions were met it was open to them to draw an adverse inference from his
failure to give evidence. In this connection the applicant also refers to the
fact that he was suffering from depression and anxiety at the time of the
re‑trial and was taking medication for these conditions.
9. His complaints may be summarised as follows, and we emphasise that what
follows is intended only as a summary, we having read and taken into account
everything he says. The central complaints are that his legal team (a) failed
to ensure that he was mentally and/or emotionally able to decide whether or not
on give evidence; (b) failed to ensure that he properly understood that an
adverse inference might be drawn by the jury if he did not give evidence; (c)
failed to ensure that he properly understood that if he did not give evidence
the jury would have no account from him as to the allegation made by SB, given
that he had declined to answer questions during his police interview about those
allegations; (d) failed to make the judge aware of his mental difficulties
before she decided whether or not the jury should be directed that they might,
subject to various conditions, draw an adverse inference from his failure to
give evidence; (e) failed to place evidence of his mental condition before the
jury to explain his failure to give evidence; and (f) in the circumstances to
which we have referred gave him flawed advice not to give evidence.
10. Because he was complaining about his legal representation, the applicant
was invited to waive privilege and did so. The result is that we have a
detailed response from Mr Timothy Cray of counsel, who, it is to be noted, acted
for the applicant at the first trial and at the appeal to which we have referred
and at the re‑trial. He is, of course, an officer of the court and it is
accepted by Mr Richmond QC, who represents the applicant today, that Mr Cray is
an experienced and well‑regarded counsel. It is apparent from the detail of his
response that, whether or not with recourse to notes, he had a detailed
recollection of events, and we have no reason to doubt the account that he has
given to us, neither do we doubt it. We have read the entire account of Mr
Cray, and again what follows is intended only as a brief summary.
11. Mr Cray states that the complaints made by the applicant are based on
factual errors and inaccuracies. In that regard Mr Richmond QC points to the
absence from the papers that we have of any attendance notes, but, since the nub
of the complaints made by the applicant are that his mental condition prevented
him from properly understanding any advice he was given, we do not see that
attendance notes would have assisted us to any material extent in resolving the
questions that arise in this case.
12. Mr Cray has informed the court that it was the applicant himself who
gave specific instructions that he did not wish to give evidence at his
re‑trial. He gave those instructions because he believed he had been a poor
witness at the first trial and that if he were to be cross‑examined at the
re‑trial, the jury would form the impression that he was guilty. We note, and
we have seen a copy of the brief concerned, that on 12th January 2009 the
applicant endorsed Mr Cray's brief in the following terms:
"I have been advised on the arguments for and against giving evidence in my
defence. I have decided not to give evidence."
His decision in this regard was, Mr Cray informs the court, kept under review
and discussed with the applicant on a daily basis during the trial, but the
applicant's attitude did not change.
13. The applicant's own view coincided with the advice that counsel gave him
and which he accepted. Counsel told him that there were risks in not giving
evidence, particularly in the form of a possible adverse inference, but advised
him not to do so taking into account the following features: first, the
applicant himself did not wish to give evidence; secondly, a poor performance by
the applicant might indeed turn the jury against him, this outweighing the risk
of an adverse inference should he not give evidence in counsel's view; thirdly,
there were weaknesses in the evidence of the complainants to which the jury's
attention could be drawn whether or not the applicant gave evidence; and,
fourthly, although the applicant had given a no comment interview in relation to
SB's allegations, at the first trial it had been argued before the jury that she
had only made the allegations to support her sister and the jury had been unable
to reach any verdicts on the counts concerning SB. This was an argument that
could be repeated at the re‑trial whether or not the applicant gave evidence.
14. We turn then to the question of the applicant's mental state. Mr Cray
asserts that it was not a cause for concern. The applicant was indeed taking
medication for his anxiety and depression, but had been able to give detailed
instructions, as well as understood the issues in the case. In this regard it
is to be noted that on Mr Cray's specific advice a report was obtained from a
psychiatrist approved for the purposes of section 12 of the Mental Health Act,
Dr McEvedy, and it was a report obtained only very shortly before the re‑trial.
The report is dated 31st December 2008 and the re‑trial began early in January
2009. It is worthwhile quoting one particular passage from the report, and we
do so:
"I am asked specifically (Counsel's Advice of Timothy Cray) to comment on the
following matters:‑
Mr Fry's ability to participate in the trial process
Mr Fry describes intense anxiety at times during his first trial in March 2008,
which was to some extent allayed by a prescription of Diazepam (Valium) by his
GP. In my view, it is likely that he will once again experience increased
anxiety during his re‑trial, and I will write to his GP with advice that a
similar prescription is likely to be helpful.
In my opinion, and with such a low dose prescription of Valium, Mr Fry is likely
to be able to participate in the trial process, including in cross‑examination,
although it may be that breaks in proceedings at regular intervals would be
helpful to him.
Giving evidence
I am mindful not only of the fact that he has gone through one trial, and
therefore knows what to expect, but also that from his participation in the
lengthy interview with the Police in June 2006, he was evidently able to
participate satisfactorily, and to hold his ground in the face of robust
questioning by his police interviewers."
15. The only document in the possession of the defence team (if we may thus
refer to them) suggesting that the applicant would be unable to give evidence
was a letter from a psychiatric nurse who was not qualified to give expert
evidence of that kind, and who in any event had said that she was not willing to
come to court. Moreover, it was Mr Cray's view that should evidence of the
applicant's mental health be placed before the jury, it might go down badly with
the jury, who might then doubt whether the applicant, as he contended, was a
responsible step‑parent.
16. In our view, it is not arguable that the applicant received improper
advice about not giving evidence or about not raising the matter of his mental
condition. We wonder indeed in what form the matter of his mental condition
could properly have been raised. In the light of the evidence available, it is
difficult to see, without misleading the court, how it could have been contended
that the applicant's mental condition prevented him from giving evidence should
he wish to do so. We can find nothing in the papers before us to indicate that
the advice that was received or the way in which the trial was conducted by
counsel was anything other than carefully considered and entirely appropriate.
17. There are further grounds of appeal, but we can deal with those
comparatively briefly.
18. The next complaint is that the applicant's legal team failed to adduce
evidence from a Dr Aziz to the effect that there was no medical evidence to
support the assertion that SB had had sexual intercourse. This ground appears
to us to be misconceived. There was before the jury an admission that SB had
been medically examined on 18th October 2006 and that this examination was
simply unable to establish whether or not SB had previously had sexual
intercourse.
19. Next, reference is made to an alleged irregularity during the trial.
The applicant, in what appears to be a complete misrecollection, says that SB's
police interview was video recorded visually but without sound, as a result of
which it was agreed, without reference to him, that a transcript of her
interview would be read out at the trial while the silent recording was played.
This, he said, distracted the jury because the reading out could not correspond
with the visual recording with complete accuracy, thus creating a confusing
impression. However, we are assured by Mr Cray that there were in fact two
video recordings of interviews with SB, both of which did have sound, which,
though of poor quality, could be heard with suitable amplification. The first
video was played to the jury in the normal way. Complications did arise in
relation to the second interview because, whilst it was being played, some loud
drilling started outside the court room which made it more difficult to hear the
sound recording. It was not possible to stop the drilling, for reasons of which
we are not informed, or to move to a quieter court room. It was decided to
press on, to play the second video and provide the jury with a transcript to
help them to follow what was being said. The transcript ran to 62 pages. The
procedure adopted was effective for the first 56 pages, but by then the external
noise had become yet louder and it was decided that the last six pages should
simply be read to the jury.
20. In our view, it was not arguable that anything in this regard rendered
the convictions unsafe. In practice, juries are regularly provided with
transcripts of video recorded interviews for their assistance while the videos
are played, and, as Mr Cray points out, it is difficult to see how the
applicant's case can have been adversely affected by problems that were faced by
the prosecution in presenting their case. Moreover, Mr Cray observes, and we
have no reason not to accept, that the applicant raised no complaint at trial.
21. Finally, complaint is made about the fact that the judge gave the jury a direction about majority verdicts too early, a little over four hours after they retired to consider their verdicts.
22. The position is that they retired at 10.17 on 16th January 2009. By
11.55 they had sent the judge a note indicating that they had reached majority
verdicts. The judge, quite rightly, directed them that they must strive to
reach unanimous verdicts. No such verdicts were forthcoming. The judge gave a
majority direction shortly before 2.44 in the afternoon and majority verdicts
were returned by 3.30.
23. We cannot see any valid criticism of the course that the judge took.
Although there were a lot of counts for the jury to consider, the case turned
essentially on the credibility of the two complainants. It appears that the
majority verdicts had been reached quite quickly but that unanimity was eluding
the jury. We can find nothing here that could have affected the safety of the
convictions.
24. Thus we conclude that there are no properly arguable grounds of appeal
against conviction. Neither, in truth, is there any good reason to grant the
extension of time sought, in view of the long delay involved, the lack of merit
in the application and the fact that the applicant, as we understand it, has had
plenty of opportunity to take legal advice, having received negative advices on
appeal from two separate counsel before making this application at this late
stage.
25. For these reasons, we refuse the application to extend time, but for the
reasons we have indicated make it clear that had that application been granted,
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