R. v. LEE CHI WAI and Others

IN THE COURT OF APPEAL

1992, No. 306
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. We are in this judgment concerned with an application for leave to appeal against conviction in relation to one court of rape and another count of false imprisonment.

2. The indictment reads: -

First Count (against 1st, 3rd and 4th accused only)

STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE

LEE Chi-wai, YUEN King-lok and LEUNG Yiu-wa, between the 26th day and 29th day of December, 1990 at 8th Floor, No. 6, Chatham Court, Kowloon, Hong Kong, together with other persons, raped CHEUNG Sin-pun.

Second Count (against 2nd and 3rd accused only)

STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE

CHAN Chi-chen and YUEN King-lok, between the 28th day of December, 1990 and the 29th day of December, 1990 at 8th Floor, No. 6, Chatham Court, Kowloon, Hong Kong, together with another person, unlawfully and injuriously imprisoned CHEUNG Sin-pun and detained her against her will.

3. By the jury's majority verdict of six to one, the first appellant LEE Chi-wai (the first accused, D1) was convicted of rape. By the same majority, the jury convicted the second appellant YUEN King-lok (the third accused, D3) of rape and also unanimously convicted him of false imprisonment. By a majority verdict of five to two, the third appellant LEUNG Yiu-wa (the fourth accused, D4) was convicted of rape. The second accused CHAN Chi-chen was acquitted of false imprisonment by a majority verdict of five to two.

4. Whilst the first appellant seeks leave to appeal against conviction only, the second and third appellants also seek leave to appeal against their respective sentences.

5. As the learned trial judge said, the most important witness in the trial was the alleged victim, Miss CHEUNG Sin-pun ("the victim"), 17 years of age at the time of trial but only 15½ in December 1990. Her evidence was uncorroborated. On the other hand, none of the accused gave evidence.

6. In summing up to the jury, the judge correctly reminded them that the prosecution's case against D1 and D4 was that they had knowingly had sexual intercourse with the victim without her consent. The case against D3 was, however, not that he had had sexual intercourse with the victim, but that he had aided and abetted or counselled D1 and D4 and others to commit rape. In explaining what aiding and abetting meant, the learned judge stated, inter alia, that D3 must have been present at the commission of the rape and helped someone to commit it, or that D3 with the intention of helping someone commit the rape was near enough to help should the need arise, for example, by keeping watch, threatening her, frightening her, etc., and that the person having sexual intercourse with the victim knew that D3 was available to help him. In explaining to the jury what counselling meant, the judge said, inter alia, that D3 must have ordered, advised, encouraged or persuaded another person to rape the victim. The learned judge went on to say: -

" Of course, there is no direct evidence that the 3rd defendant did any such thing. But if you were sure of the girl's evidence that the 3rd defendant was her pimp and that they had financial disputes and that the 3rd defendant was intent on enforcing her obedience, you could, you may think, draw the inference that the 3rd defendant ordered, advised, encouraged or persuaded the others to do it as part of his plan to subdue her and ensure her obedience."

7. Much has been said by Mr Plowman for D4 and Mr Ramanathan for D1 and D2 about the victim's credibility. Her evidence has been described as "so inherently weak", "improbable", "unreliable", and "inconsistent" that the jury's verdicts against the three appellants were unsafe and unsatisfactory.

8. First, there was the question of identification. Whilst the victim knew D1, D2 and D3, she did not know D4. There was no evidence as to the lighting condition of the room in which D4 was alleged to have raped the victim in the early hours of the morning, but the judge did give a direction following fairly closely the guideline suggested in the well-known case of Turnbull. Furthermore, in the admitted Facts D4 was recorded to have said under caution, "I did not do that. I only drove them up there". The victim's evidence was that D4 had sexual intercourse with her and it lasted 20 to 25 minutes. On 13 December 1991, about a year after the incident, she had no difficulty identifying D4 at an identification parade. But in the morning in March 1992 in the Magistrates' Court, she identified the wrong man as D4, but correctly identified another man as D4 in the afternoon.

9. There were numerous inconsistencies in her evidence, and also inconsistencies between her evidence and the five statements she had given to the police. Both counsel took us through the inconsistencies which undoubtedly exist. There were also occasions when the victim accepted that her memory had failed her.

10. The judge drew the jury's attention to some (but not all) of the inconsistencies and other weaknesses in the victim's evidence. He also told the jury that "some differences are to be expected between statements made some 18 months ago and evidence in Court", and if a girl had had sexual intercourse with eight men in circumstances which she described, she could easily be confused as to matters of detail.

11. Briefly, the victim's evidence was as follows.

12. In April or May 1990, she became a prostitute. At about 3:30 a.m. on 29 December 1990, when she returned home after going to the cinema, she found an acquaintance called Ricky waiting for her. He wanted to take her to an apartment in Chatham Court, but she was not willing to go. In her evidence in chief, she said she was "forced" to go, but under cross-examination she agreed she was not forced to go. Under re-examination she said she was willing to go with Ricky because she thought there was no way for her to refuse. Ricky said D3 was up in the Chatham Court apartment, and D3 wanted her to go there. They arrived at the empty apartment at about 4 a.m. and she entered one of the bedrooms, leaving the door ajar. First, she and Ricky had sex: she was "forced" to consent. Then, D4 (whom she had not seen before and only knew later at the police station as "Lo Lo") then came in and told her to undress. She asked why she should undress and he simply replied, "To do something". She asked for D3 (whom she called "Ah Lok"). D3 came in and she asked D3 what it was about, and there might have been a dispute between them about money. D3 was at that time her boyfriend as well as her pimp, and he told the victim (in the absence of D4) to do it and to be obedient, i.e., to have sex with D4. The victim said she would not do it but D3 said he would beat her if she did not, and she was frightened. She then had sex with D4, after which she went out of the bedroom into the adjoining bathroom and took a bath. There were at the time eight or nine men in the sitting room making a lot of noise. she told D3 she was leaving, but he said he would not let her leave. She then returned to the bedroom when yet another man came in and had sex with her. She again said she would not do it. She again took a bath and returned to the bedroom. Then the fourth man (a stranger) came in to have sex with her without her consent, and neither said anything to each other. She had known him for a year under the nickname of For Wu. After a bath D1 entered the bedroom without saying anything and she undressed herself. They then had sex over her protest that she would not do it. D1 was the fifth man. She thought she could leave after this. It was not clear from the evidence whether she asked D1 what the matter was and he said yes. The victim could not remember if she asked the question or not. After this, the sixth, seventh, and the eighth men entered the bedroom and had sex with her one after the other, each time without her consent.

13. After the eighth man had finished, she went out to the living room and said to D3 she was leaving, but D3 did not agree. This was about 8 a.m., and at the time there were four persons in the living room, namely, D2, D3, Ricky, and Ah Mung. Under cross-examination, however, she said that when she woke up, D3 had already left the apartment.

14. The victim then said in her evidence that she slept till about 4 p.m. or 5 p.m. when Ricky took her to a brothel in the Mongkok area. Under cross-examination, however, she said she did not sleep but played cards, listened to music and chatted with the others: "having fun" and "socialising".

15. At the brothel, she asked an employee there called Ah Bun to allow her to leave. (She was very frightened at the time and cried.) Instead Ah Bun allowed her to make a telephone call. She called her "sworn brother" Ah Kei and a girl friend Dau Dau. The victim told Dau Dau what had happened to her, and shortly afterwards Ah Kei and Dau Dau arrived with several other people at sometime between 8 and 9 p.m. They and the victim met outside the Silver Palace Restaurant on the opposite side of the road to the brothel. The three then went to Ah Kei's home and stayed there for about an hour.

16. There she saw one TSE Wing-ho whom she had worked for as a prostitute before joining D3's group. As D3 had taken her away from TSE Wing-ho, the latter went to the sworn brother for help.

17. In the early hours of 30 December 1990, she went to the Tsim Sha Tsui Police Station with Dau Dau to make a report. Her mother later came to the police station to join her there.

18. After this incident she joined a new group to work as a prostitute.

19. She was cross-examined on what happened at the brothel in the Mongkok area. She said apart from Ricky, none of the others at the Chatham Court apartment were there. It was later that she saw D3, and she, Ricky and D3 left the brothel to go to the street, when she was free to run across the road to join Ah Kei and Dau Dau. Ricky and D3 did not chase after her.

20. Under cross-examination, the victim for the first time admitted that she was not happy with D3 about the arrangement of money that she earned as a prostitute and she wanted to leave his group in order to work for her sworn brother's group. The first argument about money took place a few days after she had started as a prostitute. She had worked for D3 for about half a month before the alleged rapes, during which period there had been a number of quarrels about money. On 29 December 1990 at the Chatham Court apartment, however, D3 told her that he would give her money after she had worked. She also admitted under cross-examination that there was a plan that she should go back to D3 for one or two days and then she was to make an allegation against D3 and his group, that she had been falsely imprisoned, but she denied that in pursuance of that plan she had called Ricky and said she would like to see D3.

21. Counsel for the appellants also made the point that in her evidence she admitted to having "some problem with identification in this case". And the following questions and answers in cross-examination were read out with a view to showing what the victim meant when she said she did not give her consent: -

"Q. Would it be right to say that in respect of probably every customer you had ever had as a prostitute, you did not want to make love to any one of them ?

A. Right.

Q. In an essence you did not really consent to have sex with any of those men.

A. Right.

Q. It is only because of the money.

A. Right."

22. I have, in my narration of the victim's evidence, alluded to some of the inconsistencies and weaknesses in her evidence. I have not, however, overlooked any of the inconsistencies and weaknesses enumerated in the Grounds of Appeal.

23. Mr Plowman's other Grounds of Appeal are: -

Ground 2 - that the trial judge failed to adequately direct the jury on the question of consent in relation to whether the victim consented to having sexual intercourse with D4, and whether D4 knew that she did not consent or was reckless as to whether she consented.

Ground 3 - that the judge erred in directing the jury that an out of court statement by D2 that he was present but did not rape was capable of being interpreted as an acknowledgement that "there was rape going on".

24. Mr Ramanathan's Ground 3 is the same as Mr Plowman's Ground 3. By Ground 2, Mr Ramanathan contends that the judge's direction that D1's attempt to run away when the police arrived at his home could be considered as a consciousness of guilt "about something" was a misdirection. His Ground 4 is that the judge's direction in respect of counselling by D3 was wrong in that it failed to direct the jury's attention as to what in law amounted to encouragement, in particular, that they must not only be satisfied that D3 intended to encourage but that he wilfully encouraged the commission of the offence.

25. I shall now consider the various Grounds of Appeal.

26. On the quality of the victim's evidence, counsel for the appellants pointed at those aspects of her evidence dealing with the circumstances surrounding the alleged rape, the issue of consent, the identification of D4, and the victim's behaviour after the incidents of alleged rape. Her evidence describing her alleged inability to leave the Chatham Court apartment was also considered in the context of the second count.

27. Mr Plowman urges us to say that the verdict finding D4 guilty was unsafe and unsatisfactory. It is the "general feel of the case" or "the gut feeling" of the Court that should lead us to the conclusion he argued for. Stafford v. DPP [1974] AC 878 was relied on. In that case Viscount Dilhorne had the occasion to consider the effect of Sec. 2(1) of the Criminal Justice Act 1968. The section provides: -

" Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think - (a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or (c) that there was a material irregularity in the course of the trial."

28. The Lord Chancellor said (at P. 891 H to P. 892 C) that the Act does not require the Court to apply any particular test, and it should be left to the Court to decide what approach to make. What is the correct approach is not a question of law. And the observation of Widgery, LJ, in R v. Cooper [1969] 1 QB 267, 271, was cited with approval: -

" That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."

29. Roberts, CJ, in R v. TANG Wai-tong [1979] HKLR 479, said (at PP. 486-487) that the lurking doubt formula must be applied with great caution. An appellate court, reading papers and not seeing witnesses in the way a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility. "Lurking doubt", in the view of the Court of Appeal in that case, means not an insubstantial but a substantial remaining doubt. In R v. Arobieke [1988] Cr. L. Rev. 314, the Court of Appeal held that the test applied by the Court of Appeal was different from that applied by the trial judge on a submission of "no case". The supervision of the Court of Appeal extended beyond and operated at a later stage than the discretion or the decision of the trial judge at the end of the prosecution case.

30. In the present case, submissions of "no case" were made on behalf of each appellant, but the learned trial judge ruled in each case there was a case to answer.

31. Whilst the quality of the victim's evidence was undoubtedly poor and uncorroborated, there was nevertheless adequate material upon which the jury could convict. It was open to the jury to find that the victim's will was bent by Ricky and D3, and by the presence of so many men making a lot of noise in the sitting room. It seemed entirely possible that she succumbed to the sexual assaults because she decided there was no point in resisting.

32. On the identification of D4, there was the admitted fact that he had driven "them up there". The sexual intercourse took 20 to 25 minutes and there was some brief conversation. Even if it was in a poorly illuminated room at 4 a.m., it was not improbable that the victim was able to recognise D4's face.

33. It is true that her behaviour after having had sex with eight men was strange, but who can say how these hardened, streetwise, girls conduct themselves in the face of so many men ? Again it might be the jury thought the victim's will had weakened to the extent that she thought it best for her to pretend that she would humour her captors.

34. All the evidence was before the jury. The judge directed the jury correctly on the issue of corroboration. The jury in my view was entitled to come to the conclusions that sexual intercourse took place without her consent and each of the appellants knew she did not consent or was reckless as to whether she consented. D3 by the words he uttered at the Chatham Court apartment and by his presence there with several men could on the judge's direction to the jury be found to be guilty in respect of the rape committed by the men except Ricky. Similarly, D3 could properly be found guilty of false imprisonment at least from the time of his arrival at the apartment until the "fun" and "socialising" began.

35. I now come to Mr Plowman's Ground 2 (see above). It was perhaps a little unfortunate that in a case of multiple rape, the trial judge did not relate the direction on the law to each incident committed by each alleged culprit. Instead, he gave a general direction on the law, which is in all respects correct, and then went on to discuss all the evidence together, also correctly. It was almost as if a sharp line of demarcation was drawn between that part of the summing up on the law and the other part dealing with the evidence. Whilst such a method might well be satisfactory where the facts are simple, a question may arise, where a number of incidents and accused are involved, as to whether the direction on the law should be tailored to the evidence regarding each accused separately so as to avoid confusion on the part of the jury. In my view, there were no complications in the evidence. D4's action was quite distinct from that of the others. D4 was a total stranger to the victim who indicated, although weakly, that she did not give her consent. He was at least reckless as to whether she consented.

36. Mr Plowman's and Mr Ramanathan's Ground 3 concern a statement made by D2 after he had been identified at an identification parade held on 7 January 1991. He said: -

"I slept in Chatham Court that day and she was there. I took no part in raping her. I was present only. That is all."

37. The judge said this in his summing up: -

"Now there are a number of things I want to tell you about this statement. First and most important, it is evidence against the 2nd defendant only. In fact, anything which any defendant says out of court is only evidence against the maker of that statement. It is not, I repeat not, evidence against any other defendant. The same applies, of course, to anything said out of court by any other defendant. It is evidence against the maker only."

38. He went on to say that that statement was capable of being interpreted as an acknowledgment that there was rape going on. Counsel suggested that the jury might be misled by the judge into thinking that D2's statement was evidence that the victim had in fact been raped. With respect I disagree, the words of the summing up are clear. The judge stressed that the statement could not be used against any other accused. It was a little unfortunate that the judge should refer to this statement at all, for it was not even evidence against D2 who was not charged with rape but only with false imprisonment. In the end, however, in my view no harm was done.

39. Next I come to Mr Ramanathan's Ground 2, on the evidence of D1's attempted escape. The passage in the summing up complained of reads: -

" There is one piece of evidence which is not capable of amounting to corroboration but which is nevertheless relevant. That is the police evidence that upon opening the door of Chatham Court, at seeing the police and the girl and upon hearing her point him out, the 1st defendant tried to run away and was chased, caught and arrested. ..... It is not corroboration, but it is nevertheless something which you may take into consideration as revealing a consciousness of guilt on the part of the 1st defendant about something unless, of course, you feel that the 1st defendant simply ran out of panic or that there is some other explanation for his conduct."

40. Counsel argued that there was no nexus between the charge which D1 faced, namely, rape, and his flight. There was no evidence that D1 knew the victim had made a report to the police. The judgment of Power, JA (as he then was) in R v. LAM Yau-tim (1991) Crim. App. No. 556 (unreported) was cited in support: see also R v. CHAN Kwok-keung (1990) 1 HKLR 359, 363 A-C. However, as Mr Cross for the Prosecution pointed out, here there was a strong nexus. The victim in the early hours of the 30 December 1990, less than 24 hours after the alleged offences, brought the police to D1's home and pointed him out. If anything the judge's direction was unduly favourable to the defence.

41. Next, Mr Ramanathan complained that the judge's direction in respect of D3 on counselling was wrong.

42. In R v. Coney (1882) 8 QBD 534, Hawkins, J, said (at p. 557): -

"..... In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not."

43. The passage was cited with approval in R v. Clarkson (1971) 55 Cr. App. R 445, at PP. 449-450. On the dictum of Hawkins, J. there was clearly evidence upon which the jury could convict D3.

44. In my judgment, none of the Grounds of Appeal, taken individually, was sufficient to upset the verdicts. The next question is whether taken cumulatively, I have such a feeling of unease and doubt that should lead me to say that the verdicts were unsafe and unsatisfactory. I must confess that, having regard to all the circumstances of the case, and bearing in mind the weaknesses in the victim's evidence, I do not entertain "a lurking doubt".

45. I would dismiss the application by the three appellants for leave to appeal against conviction.

Macdougall, V.-P.:

46. It is not necessary for me to repeat all of the factual detail that has been referred to in the judgment of my Lord, the Chief Justice.

47. As he observed, there were a number of inconsistencies and weaknesses in the complainant's testimony. These were fully explored in cross-examination, and the judge in his summing up drew the jury's attention to the more important of them. I would not be disposed to allow this appeal solely on the ground that was argued on behalf of all of the applicants that the complainant's testimony was so flawed and inherently incredible that the convictions are unsafe and unsatisfactory.

48. However, the matter does not end there. The defence case was that the complainant had come to and had remained at the flat at Chatham Court of her own free will and that such acts of intercourse that occurred were consensual.

49. In cross-examination the complainant admitted that she had previously been working as a prostitute for one Ah Ho but that the 2nd applicant, Yuen King-lok, had taken her away from Ah Ho and had her work for him. She further admitted that on the afternoon of the day prior to the alleged rapes she had gone to her sworn brother's home; that Ah Ho and two other men were present there; that Ah Ho was seeking help from the complainant's sworn brother to get the complainant back from the 2nd applicant; and that a plan was hatched that the complainant should return to the 2nd applicant for one or two days after which an allegation would be made to the police that the 2nd applicant and his group had falsely imprisoned her.

50. The complainant also admitted that after the alleged rapes had taken place and her detention in the flat had ended, the 2nd applicant and Ricky, who was the man with whom she had gone to the flat initially, took her to a brothel and left her there. She then made a telephone call to her sworn brother as a result of which he and a girl named Dau Dau met the complainant at a restaurant on the opposite side of the road to the brothel. From there they went to the sworn brother's home in Tokwawan. An hour later the complainant, accompanied by Dau Dau, went to the Tsim Sha Tsui police station where she made a report of the alleged rapes and false imprisonment.

51. The defence sought to make the point that the allegations which the complainant was making against the applicants had been made in pursuance of the plan that had been hatched at the sworn brother's home prior to the complainant going to the flat where the alleged offences occurred.

52. In the course of his summing up, the judge, having referred to an explanation that had been given by a police officer as to why two witnesses whose names appeared on the back of the indictment, and another person, had not attended at the trial and given evidence, went on to say:

"As to the sworn brother, the officer said that the police information was that he was not involved and he could not give material evidence."

53. This expression of opinion based on hearsay as to the non-involvement of the sworn brother was clearly inadmissible. However, its likely effect was to lead the jury to think that because the police appeared to be satisfied that the sworn brother had no connection with the events with which the case was concerned, the possibility that the complainant had acted in pursuance of a preconceived plan could safely be disregarded. The judge should have directed the jury to dismiss this inadmissible evidence from their minds.

54. Of even greater significance was the following matter.

55. There was evidence that a co-defendant named Chan Chi Chen, who was the 2nd defendant at trial and was ultimately found not guilty and acquitted, had made a statement immediately after he had been identified by the complainant at an identification parade held for the purpose of determining whether she could identity suspects as being those involved in raping and falsely imprisoning her. The statement was as follows:

"I slept in Chatham Court that day and she was there. I took no part in raping her. I was present only, that is all."

56. With regard to that statement the judge had this to say to the jury:

"Now there are a number of things I want to tell you about this statement. First and most important, it is evidence against the 2nd defendant only. In fact, anything which any defendant says out of court is only evidence against the maker of that statement. It is not, I repeat not, evidence against any other defendant. The same applies, of course, to anything said out of court by any other defendant. It is evidence against the maker only.

This statement by the 2nd defendant is capable of being interpreted as an acknowledgement that there was rape going on, but that the 2nd defendant took no part. Whether it does so is a matter entirely for you. It also contains other significant material. It confirms the girl's evidence that the 2nd defendant was present in the flat, and that she was present at Chatham Court on 29th December. It suggests that he spent some time there since he says he slept there."

57. Notwithstanding the perfectly proper warning that the statement of the 2nd defendant was not evidence against the other defendants, the judge effectively contradicted himself by telling the jury that it was "capable of being interpreted as an acknowledgment that there was rape going on". The applicants' defence was that no rape had occurred. If the jury interpreted the statement, as the judge left at open to them to do, to mean that "rape was going on", the almost inevitable consequence was that they would have regarded it as confirmation of the complainant's testimony that she had been raped and that, in that sense, was evidence which they could use in coming to their verdicts in respect of the three applicants who were standing trial for rape. It was also very likely to have had the indirect effect of bolstering her allegation that she had been falsely imprisoned, and thereby have affected the jury's views in considering the count of false imprisonment against the 2nd applicant.

58. Even if the statement had been admissible as evidence against the applicants, it seems to me that in view of its highly ambiguous nature the judge would have been obliged to exclude it on the basis that its prejudicial effect outweighed its probative value. Bearing in mind the circumstances under which the statement was made, it was very dangerous for the judge to suggest to the jury that it was possible to deduce from the 2nd defendant's denial that he took part in raping the complainant that he was asserting that a rape or rapes had in fact occurred. Moreover, since the complainant's evidence was that the rapes had occurred in a room in which he was not present, his admission that he "was present" could only be taken to mean that he was in another part of the flat. It therefore lent no force to the inference which the judge left open to the jury to draw.

59. In the light of the foregoing I find myself compelled to the view that the convictions cannot stand. I would therefore grant the applicants' applications for leave to appeal against conviction and treating them as the hearing of the appeals, quash the convictions and set aside the sentences.

Hon. Barnett, J:

60. With respect, I agree with my Lord, the Vice-President, that these convictions are unsafe and unsatisfactory.

61. There was a number of grounds of appeal. Only 2 are of any significance, namely: the weakness of the complainant's evidence, a ground which relied in part on the admission by the complainant that there was a plan to make allegations of false imprisonment; and the judge's direction in relation to the out-of-court statement by the co-defendant, who was acquitted. Like my Lord, the Chief Justice, I find nothing in these grounds, taken individually, to cause me any unease.

62. Cumulatively, however, the effect is to leave me with a real fear that the jury may not have given the complainant and her evidence the close scrutiny they deserved. The quite inappropriate reference by the judge to the inadmissible evidence - that the complainant's sworn brother was not involved - in my judgment effectively undermined what was otherwise proper advice to the jury on how to approach the complainant's admission.

63. Notwithstanding the judge's direction that the co-defendant's statement was evidence against the maker only', the following passage seems to me to have left it open to the jury to find 'rape was going on'. As the co-defendant was not indicted for rape, it seems likely that the jury would have assumed that this evidence had some relevance to the allegations of rape against the applicants.

64. I too would allow the applications for leave, quash the convictions and set aside the sentences.