Neutral Citation No [2012] NICA 56	Ref:     	MOR8686	
			
Judgment: approved by the Court for handing down	Delivered:	19/12/2012	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________ 
THE QUEEN 
v
UDAYKAMAUR JOSHI
________
Before: Morgan LCJ, Higgins LJ and Coghlin LJ
________ 

MORGAN LCJ (giving the judgment of the court)
[1] 	The appellant appeals his conviction on two counts of buggery and one of indecent assault against a minor allegedly committed in 1979 while he was employed as a professional at a cricket club of which the complainant’s father was a member. The appeal is largely grounded on the weight of the evidence and the complainant’s credibility. The trial judge gave leave on the question of whether a Makanjuola warning should have been given.

Background

[2] 	The appellant was convicted on 3 February 2012 by a jury before Her Honour Judge Loughran of two counts of buggery of a boy under 16 years of age contrary to Section 61 of the Offences Against the Person Act 1861 and one count of indecent assault on a male child contrary to Section 62 of the Offences Against the Person Act 1861. He was sentenced to 6 years imprisonment concurrent on each count of buggery and 1 year’s imprisonment concurrent on the indecent assault on 9 March 2012. The maximum sentence for a s. 61 offence where the victim is under 16 is life imprisonment, and for the s. 62 offence is 10 years imprisonment.

[3] 	The offences are alleged to have occurred when the appellant came to Northern Ireland in 1979 as a cricket professional. He arrived at the club in the summer months of 1979 and had arranged lodgings at the home of the complainant’s grandmother. This is where the offences are alleged to have taken place. The complainant was 13 years old at that time.

[4] 	The prosecution case was that the first offence was committed after the complainant had been at the cricket club late on a Sunday evening with his father. The appellant was taking a coaching session the next day. He suggested that, rather than the complainant returning home and then travelling to the club the next morning, he could stay at his grandmother’s house which was close by. The complainant and the appellant stayed at his grandmother’s house that night although his grandmother, according to the complainant, was not at home. The appellant and the complainant talked about cricket and the appellant asked the complainant to stay in the same bed. The complainant awoke to find that the appellant was trying to masturbate him. He told the appellant to stop, which he did, but the appellant then proceeded to commit an act of buggery and then oral penetration with his penis on the complainant. The next day the appellant told the complainant that it was a secret and nobody was to know about it. These offences occurred at the start of August 1979 and are included in counts 1 and 2 on the indictment.

[5] 	One or two weeks later the third offence occurred. The complainant was again staying with his grandmother. The appellant came to the doorway of what was described as the box bedroom where the complainant was staying to get him to come to the appellant’s bedroom. The complainant went to the appellant’s bedroom where the appellant committed a further act of buggery upon him. On a third occasion, when the complainant was again staying at his grandmother’s house, the appellant came to his bedroom door to try and get the complainant to come to his bedroom, but the complainant refused to go and the appellant returned to his own bedroom.

[6] 	The appellant returned to Northern Ireland for a second season with the cricket club in 1980 accompanied by his wife and young family but no further offending occurred. The complainant disclosed to a school friend in 1980 that the appellant had approached him sexually but that he had refused to participate “beating him off with a shoe”. In the trial the complainant agreed that this was a fabrication. He made a disclosure to a female acquaintance in 1995 that he had been sexually abused. He then arranged to attend counselling. He made a disclosure to his father around December 1997 and a statement to police in February 1998. Police investigations were not pursued at that time as they wrongly believed corroboration was required but the complainant made a second statement to police in November 2010 when he heard that the appellant would be in Northern Ireland.

Lies and inconsistencies

[7] 	The complainant admitted that his account to his school friend in 1980 that he beat the appellant off with a shoe was a fabrication. He said that in part he was ashamed of not resisting him. The complainant claimed that he made full disclosure to this person in the mid 1990s but the school friend had no recollection of such a conversation. The complainant’s female acquaintance said that he made disclosure of abuse by a famous Indian cricketer to her in 1995 and broke down when doing so. She said that she persuaded him to see a psychotherapist. He denied that he made full disclosure and said that she had not been responsible for him seeing a therapist. He had arranged that himself.

[8] 	In respect of the first incident when he was masturbated the complainant told police in 1998 that the appellant stopped when he told him to. He told his counsellor in 1997 that he pushed the appellant’s hand away first. In his evidence in chief he said that he told the appellant that he had done it earlier in the evening and asked him to stop. He said that he had not told the police what he had said because it was not relevant and he had overlooked it. 

[9] 	He told police in 1998 that the first incident included oral penetration and ended when he ran to the bathroom feeling sick. He also told police in 2010 that he was penetrated orally and anally. He did not mention oral penetration to his counsellor in January 1997 when he described prolonged anal penetration, ejaculation and the appellant rolling off him and going to the toilet. His explanation was that he did not need to give his therapist an accurate account of the incident. He first raised this with her in October 1997. He agreed that the first account to his therapist was not consistent with his account to police.

[10] 	In respect of the third count the complainant agreed that he had fabricated an account to his therapist that the appellant had forcibly removed him from his bedroom by grabbing him by the arm. He also claimed that he had been approached on a further occasion by the appellant coming to his bedroom. The complainant told police in 1998 and his therapist that the appellant backed away when he said no. In his evidence the complainant alleged for the first time that he had actually reached for a shoe as if to fight him off and that the appellant had desisted at that stage. In his 1998 police statement the complainant alleged that on the morning following the incident when the appellant had desisted the appellant told him not to say anything and the complainant could see that he was scared. In his evidence, however, the complainant said that this never happened.

[11] 	The complainant stated that the first incident occurred during the first week of August 1979 and the second incident about a week later. He was unsure if the coaching course lasted for one or two weeks. The appellant had been able to recover his diary for the period and it showed only one coaching session for which he was responsible on 17 August 1979. He also was able to recover a postcard sent by the complainant’s father from Killiney dated 16 August where the complainant and his family were enjoying their annual holiday. The complainant’s father included in the card his best wishes for the next match on 18 August. If, therefore, the appellant only coached on 17 August it seems highly unlikely that the complainant was in Northern Ireland at that time.

[12] 	The complainant’s father gave evidence that the first complaint to him was in 1997 or 1998. He understood that there had been only one incident. He accepted that the appellant was very highly thought of by those in the cricket club and also by the complainant’s grandmother with whom he stayed in contact until her death.

The issues on the appeal

[13] 	The appellant invited the learned trial judge to stay the proceedings as an abuse of process. The file in relation to the original police investigation in 1998 had been lost. It was not known if a statement had been obtained from the complainant’s grandmother who may have been able to comment on the evidence of the complainant that she was not on the premises on the first occasion. It did not appear that any effort had been made to obtain records from the cricket club which might have shown the extent of the appellant’s coaching commitments. No medical examination of the complainant was attempted nor was there any attempt to bring the appellant back to Northern Ireland for interview. It appears this was because the police were of the view that corroboration was required whereas the law had been changed in July 1997.

[14] 	There is no criticism of the test applied by the learned trial judge. No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held (see CPS v F [2011] EWCA Crim 1844). The approach to the consideration of any unfairness in circumstances such as these was dealt with by this court in R v McNally and McManus [2009] NICA 3 at paragraph 18:

“It appears to us that this examination must be conducted at two levels. The first involves an inquiry into the individual defects in the prosecution case or the police investigation and the measures that might be taken to deal with each. The second entails the weighing of the impact of the various factors on a collective basis. It does not necessarily follow that, because some steps to mitigate each item of potential unfairness can be taken, the stay must be refused. A judgment can still be made that the overall level of unfairness that is likely to remain is of such significance that the proceedings should not be allowed to continue. It is to be remembered, of course, that the judge must be persuaded of this proposition by the defence, albeit only on a balance of probabilities.”

The judge properly recognised the difficulties that the case would raise but concluded that these could be accommodated within the trial process. It will be necessary to examine at a later stage how the learned trial judge dealt with the issues of delay arising from the late report and the failure of the initial police investigation but the trial process was capable of dealing with the possible prejudice to the appellant arising from these matters and there was no basis upon which the judge could have acceded to this application. We remind practitioners that such applications should be made if at all at the commencement of the trial rather than as here after the close of the prosecution case.

[15] 	At the end of the prosecution case the appellant applied for a direction. The learned trial judge accepted that the complainant had lied to his friend when he made a disclosure that he had fended the appellant off with a shoe at the time of the first approach and had also lied to his counsellor when he said that the appellant had pulled him by the arm into the bedroom in respect of count 3. There were obvious inconsistencies including the absence of any reference to oral penetration to his counsellor when he described the first incident in January 1997 and the dispute over the circumstances of his disclosure to his female acquaintance in 1995. 

[16] 	The principles which govern the determination of this application are well established and uncontroversial. In R v Galbraith [1981] 73 Cr. App. R 124 and [1981] 2 All ER 1060, Lord Lane CJ stated:

"How then should the judge approach a submission of 'no case'? –

(1)	If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

(2) 	The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.–

(a) 	Where the judge comes to the conclusion that the Crown's evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case;

(b) 	Where however the Crown's evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury." 

[17] 	Lord Lowry LCJ considered Galbraith in R v Hassan and others [1981] 9 NIJB where he stated:

"I entirely accept the principles as stated by Lord Lane, always remembering that 'no evidence' does not mean literally no evidence but rather no evidence on which a reasonable jury properly directed could return a verdict of guilty. This test does not depend on the unacceptable practice of assessing the credibility of a witness …

But it is still open to the trial judge to say that the evidence reveals inconsistencies and absurdities so gross that, as a rational person, he could not allow a jury to say that it satisfied them of the prisoner's guilt beyond reasonable doubt. If that is his clear view, he should direct a verdict of not guilty."

[18]  In formulating the test in this way, Lord Lowry cited with approval the statement of Lord Widgery CJ in R v Barker [1977] 65 Cr. App. R 287:

"… even if the judge had taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury …"

[19] 	There is no complaint that the learned trial judge applied the wrong test and it is also apparent that she recognised the weaknesses in the prosecution case as a result of the lies and inconsistencies which she set out in her ruling. She expressed the view that she had a very considerable degree of anxiety but in our view correctly recognised that this was a matter for the jury to decide.

[20]	The appellant contended that the judge’s direction on delay and the inadequacies of the police investigation did not ensure that the jury would make sufficient allowance for the difficulties faced by the defence. This was an issue of considerable importance as it was the primary mechanism whereby the court could deal with any prejudice to the appellant arising from those matters. In her examination of delay the learned trial judge reminded the jury that the events took place more than 30 years ago and that there was a real danger of prejudice to the defence as a result. She directed the jury to consider why these matters had not come to light earlier and discussed the possibility of evidence from the complainant’s grandmother or the cricket club if a complaint had been made either at the time of the alleged events or at the time of disclosure to the complainant’s school friend. She then reminded the jury that there were further delays after the complainant made a statement to the police in 1998 which caused further possible prejudice to the appellant as a result of the passage of time.

[21] 	In respect of the police investigation she told the jury that the original file had been lost, the police officers involved in the investigation in 1998 were now retired and not available and no statement had been obtained from the complainant’s grandmother. Although she had been involved in a car accident in 1991 from which she never fully recovered she had been able to live on her own for the next ten years and could have been interviewed. No medical examination of the complainant had been carried out and no records had been obtained from the cricket club. No attempt had been made to interview the appellant until 2010 despite the fact that he continued to keep in touch with friends in Northern Ireland. She reminded the jury that memories are affected by the passage of time and the appellant would have been better able to deal with the issues if he had been interviewed 12 years earlier. The judge made it clear to the jury that if there was any prejudice to the appellant as a result of this they should take that into account in deciding whether the prosecution had proved its case to the required standard.

[22] 	The judge highlighted specific ways in which the appellant might have been prejudiced. The complainant’s grandmother might have been able to deal with the evidence that she was not there during some period in 1979 when the appellant was staying at her house. She referred to the material that may have been available in the coaching records of the cricket club which might have demonstrated whether the appellant was coaching at that time and noted that an earlier disclosure would have enabled the circumstances and dates of the family holiday to be ascertained. In our view the charge carefully directed the jury on the possible prejudice from the passage of time as a result of failing memory and then specifically highlighted the possible prejudice from lost evidence or matters that could no longer be investigated. We do not consider that there was any error in the learned trial judge’s handling of this important issue.
[23] 	In the course of her speech to the jury prosecution counsel suggested that the appellant’s good character did not help the jury because the complainant was also of good character. That comment clearly was intended to undermine the weight which the appellant was entitled to expect the jury to give to the evidence of positive good character both at the time of the alleged offence and for more than 30 years thereafter. It is apparent therefore that the suggestion that the appellant’s good character did not help the jury in determining whether to believe him and whether it was likely that he had committed these offences was erroneous. The appellant’s counsel asked the trial judge to deal with this error at the end of prosecution counsel’s speech but she declined and indicated that the defence could take it up in their closing speech. 

[24] 	In her charge to the jury the learned trial judge gave a full enhanced good character direction. She explained that a good character direction was only available in respect of a defendant. There is no complaint about the adequacy of the direction which could have left the jury in no doubt about the relevance and importance of the appellant’s character. We accept that it would have been open to her to correct the error by prosecution counsel expressly but the clarity of the good character direction was such that the jury could have been in no doubt as to its relevance and importance. Towards the end of her charge the learned trial judge thanked the jury for their attention to her and to the committed and professional speeches of the prosecution and defence. We do not accept that this expression of gratitude diminished in any way the good character direction.

[25] 	Although there were further complaints about the manner in which the prosecution closed the case we do not consider that they were material. Prosecution counsel stated that the failings in the police investigation were not the fault of the complainant. The learned trial judge expressly pointed out to the jury that the police were part of the prosecution process and that any prejudice suffered by the complainant must be taken into account in considering guilt beyond reasonable doubt. We do not consider that the observation by prosecution counsel that the judge would ensure a fair trial and would not have allowed it to proceed if it was not fair undermined the clear warnings about the risk of prejudice.

[26] 	The principal ground advanced on behalf of the appellant was that the learned trial judge failed to give a warning that the jury should exercise caution before acting on the evidence of the complainant. In R v Makanjuola (1995) 1 WLR 1348 Lord Taylor CJ summarised the relevant principles governing the giving of such a warning:

“(1) 	Section 32(1) (of the Criminal Justice and Public Order Act 1994) abrogated the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into one of those categories.

(2)	It is a matter for the judge’s discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and on what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence.

(3) 	In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor would it necessarily be so because the witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestion by cross-examining counsel.

(4) 	If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of a jury before final speeches.

(5) 	Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge’s review of the evidence and his comments as to how the jury should evaluate it rather than as a set piece legal direction.

(6) 	Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroboration rules. 

(7) 	It follows that we emphatically disagree with the tentative submission (that if a judge does give a warning, he should give a full warning and should tell the jury what corroboration is in a technical sense and identify the evidence capable of being corroborative. Attempts to re-impose the straightjacket of the corroboration rules are strongly to be deprecated.

(8)	Finally, this court will be disinclined to interfere with a trial judge’s exercise of his discretion save in a case where the exercise is unreasonable in the Wednesbury sense.”

[27] 	Lord Taylor also reviewed the circumstances which might give rise to such a warning and its content:

“The judge will often consider that no special warning is required at all. Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence. We stress that these observations are merely illustrative of some, not all, of the factors which the judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury.” 

[28] 	The appellant raised the issue of a warning in respect of the evidence of the complainant in advance of closing speeches. It was submitted that the jury should be told that it would be unwise to convict on the unsupported evidence of the complainant. This was opposed by the prosecution. The learned trial judge indicated that she would consider whether to give a warning. The appellant renewed his submission after counsel’s speeches but the learned trial judge did not give any ruling in advance of her charge.

[29] 	In order to deal with this issue it is necessary to identify those factors which pointed towards the need for a Makanjoula warning of some kind and then examine how they were dealt with by the judge. The complainant admitted that he had lied on two occasions about these allegations. About a year after the incident, when he was 14, he told his friend that the appellant had come into his room and tried to get the complainant to come into his bedroom but that the complainant had been able to fight him off with a shoe. He agreed that he had not resisted the appellant and that his account to his friend that he had fended him off with a shoe had been a lie. He said that he told the lie because he was ashamed to admit that he had not tried to resist the appellant. That was also his explanation for not disclosing the attacks at an earlier stage. The evidence indicated that this disclosure was well known within the complainant’s school. The judge first addressed this disclosure as relevant to the question of recent complaint. She properly invited the jury to consider if it helped them to decide if the complaint supported the complainant’s case. She gave proper emphasis to the lie and the explanation for it. She expressed the view to the jury that the account given to the friend was significantly different from the account given by the complainant in evidence.

[30] 	The second lie admitted by the complainant arose from his account to his therapist, whom he attended between 1995 and 1998, about the second incident of buggery. He told her that the appellant had leant over him and clasped his arm in order to get him into the appellant’s bedroom. In fact he said that he had gone quietly into the room as he did not want his grandmother to be wakened and the events of the previous week to be discovered. The judge pointed out that the complainant had been in therapy with this therapist for a long period of time and she invited them to consider what they made of his explanation that he was ashamed against that background.

[31] 	Towards the end of her charge the judge again returned to the lies in the context of her invitation to the jury to consider the complainant’s reliability. She had just pointed out to the jury that his was a case of one person’s word against another. She reminded them of both lies admitted by the complainant and asked the jury to consider whether they created a doubt about his overall reliability. She immediately reminded the jury that it was not just a matter of preferring one person’s evidence over another. The jury had to be satisfied beyond reasonable doubt before they could convict the appellant.

[32] 	The learned trial judge did not at any stage ask the jury to treat the complainant’s evidence with caution but it is clear from Lord Taylor’s guidance that the nature of any warning that a judge decides to give in relation to a witness should be woven into the review of the evidence and the language used should reflect the strength of the warning considered appropriate by the judge. Having regard to the nature of the lies admitted and the explanations provided we do not consider that the learned trial judge can be criticised for taking the view that this was not one of those cases where the lies called for the need for supporting material before relying on the evidence of the complainant.

[33] 	The appellant also relied on a number of inconsistencies in the complainant’s evidence. He said that he thought that he had only given his female friend a bare account that he had been sexually assaulted but she said that he told her that he had been assaulted by a famous cricketer while he was staying at his grandmother’s house. The recollection of this conversation in 1995 was unlikely to have been of significance in assessing the credibility of the complainant.
[34]	Of more significance were the discrepancies between the complainant’s accounts to his therapist and his evidence. The therapist’s records contain no mention of oral sex during the first encounter when she explored this in session eleven. In session 58 he said that he was unsure if the appellant ejaculated into his rectum whereas in evidence he said that he did. In the same session he said that he had pushed the appellant’s hand away which he denied in evidence but then said that he might have brushed against it. He told the therapist that it was after the second incident of anal penetration that the appellant told him not to tell anyone whereas his evidence was that this occurred after the first incident. His explanation was that in some cases it was too painful to give a full account, in other cases the issues were irrelevant and on some occasions he merely gave a summary because the purpose of the therapy was not to investigate the detail of the attacks.

[35] 	In November 2010 the complainant made a statement to police in Wales. In that statement he said that there were a number of incidents and he gave the wrong address for his grandmother. He explained that he had been asked to attend the police station at short notice and had given a cursory account to inform the police that he had been attacked. The appellant also relied on the complainant’s evidence to the court that on the last occasion when the complainant refused the appellant’s advances the complainant said in evidence that he had reached towards a shoe as if to threaten the appellant. That account had never been given to the police or his therapist before appearing in his evidence.

[36] 	All of these matters were put before the jury by the learned trial judge on the basis that they were material to the issue of who the jury should believe and whether they were satisfied to the requisite standard. The jury had the opportunity to see all of the witnesses, to observe their demeanour and to take into account those nuances of tone and manner which give the jury their unique advantage. It cannot be said that the appellant’s case was not fully explored before them by the learned trial judge and it is apparent from the transcripts that the issues were carefully developed and explored by senior counsel on behalf of the appellant.

[37] 	The last point made on behalf of the appellant arises from a question raised by the jury during their deliberations. The foreperson said that there was a lack of clarity between a doubt giving rise to a not guilty verdict and bringing your common sense to bear. The jury were unsure where to put the emphasis. The judge told them that if they had a doubt they had to acquit. She could not have been clearer.

Conclusion

[38] We have carefully considered the grounds put forward on behalf of the appellant. We are satisfied that the learned trial judge properly exposed the issues in the complainant’s evidence which touched on his reliability and credibility. This was a paradigm case for a decision by the jury as to whether they were satisfied to the requisite standard. We find no basis upon which to interfere with their decision and are not left with any sense of unease about the verdict. The appeal must be dismissed.