R v Fry (David George)  EWCA Crim 2337,  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."
Neutral Citation Number:  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 Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Mr B Richmond QC appeared on behalf of the Applicant J U D G M E N T (As Approved by the Court) Crown copyright©
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.
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.
leave to appeal would have refused.
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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