England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		15th May 1997

THE VICE PRESIDENT: On 18th December 1996, at Oxford Crown Court, after a trial before His Honour Judge Clark, this appellant was convicted on three of the counts in the indictment which charged indecent assault, Counts 3, 4 and 5, and he was acquitted of like offences on Counts 1, 2 and 6. He was subsequently sentenced to 12 months' imprisonment on each count concurrently. Against that conviction he appeals by leave of the Single Judge.

The complainant, in relation to all six counts, was a girl born on 13th May 1980, and she was 15 at the time of the alleged offences. She was the niece of a woman called M, who lived with the appellant. They had been together for some years and had two young children. The counts in the indictment related to four occasions in July 1995 and two in April 1996.

Count 1, on which the appellant was acquitted, concerned an occasion in July 1995 when it was common ground that the appellant had given the complainant a massage. Her account was that, in the course of so doing, he unclipped her bra, puts his hands down her front and kissed her neck, and that he was massaging her breasts when M came downstairs. On that, as on all other, occasions, the appellant denied any sort of indecent behaviour.

Count 2 related to events later the same day. The complainant was recovering from an asthma attack and had difficulty sleeping. She went downstairs. The appellant was watching the television and she sat down on the settee. According to the girl he put his arm round her and started kissing her on the mouth. He pulled her down, pushing his body against her so she could feel his erect penis between her legs on the top of her clothing, and he kept trying to put his hand down her underwear and she kept pushing his hand away. In relation to that the appellant was acquitted.

Count 3 related to an occasion two days later when the appellant drove the complainant to park in some bushes near the river. According to the girl the complainant suggested she get in the back of the car. She did so, albeit that she was frightened, and there he took off her T-shirt and bra and started kissing and rubbing her breasts, and said that she was good looking and had "big tits" and mentioned, according to the girl, something about her aunt being not good in bed. On that count he was convicted.

Count 4 related to an incident the following day when the complainant was walking in the park with the appellant and his two small sons. She said that she sat down on a log. The appellant sat behind her, put his arms round her waist and up her T-shirt, and started feeling her breasts, having undone her bra, and kissed her. She asked, "What if the boys see you?", and he said it did not matter, they would not see anything. She noticed, when he tried to pull her down on him, that his jeans were unzipped and his erect penis was exposed. In relation to that matter, she said when they returned to the house she was too scared to say anything, and the appellant was convicted on that count.

Count 5, on which he was also convicted, related to an incident on Easter Sunday in April 1996. It was another occasion on which the appellant drove the complainant to the park. He there, she thought, rubbed her breasts and kissed her, but she was not sure about that, but she did remember him sitting down, spreading his legs and pulling her down to sit between his legs, kissing her on the mouth, unbuttoning her jeans and putting his hand inside her underwear and rubbing her private parts. She said they were interrupted by one of his sons who announced he needed to go to the lavatory, and the appellant told him to urinate in the bottle which he, the boy, was carrying.

On Count 6 the appellant was, as we have said, acquitted. That related to an incident said to have taken place later on Easter Sunday when the appellant was lying on one of the boy's beds and the complainant was sitting on the floor, and he asked her to sit on the bed and pulled her down onto the bed, kissing her on the lips; and she thought he put his hand under her T-shirt and felt her breasts, but they were interrupted by the arrival of M.

The incidents of which complaint was made came to light because, when the girl returned to her home in Scotland , she was thereafter told that she was going to go back for the summer: at that stage she ran away. She said she felt guilty because she felt she had led the appellant on because she was wearing short skirts and had not stopped him.

The police were informed. The appellant was arrested on 29th April 1996 and he made no reply in interview.

In cross-examination the girl had said that she had not dozed off during the incident said to give rise to Count 1.

The appellant, in the presence of his legal representative, denied all knowledge of any criminal conduct at all. He said he was not particularly attracted to the girl. She was physically, but not mentally, mature, and he thought she might be making the allegations against him because she had a crush on him.

The appellant gave evidence before the jury. He agreed, as we have said, that he had massaged her back and shoulders on the occasion giving rise to Count 1, but he denied touching her breasts, and then M had come in. So far as the incident said to give rise to Count 2 was concerned, he said that he had merely been comforting the girl following her asthma attack, and there was no sexual motive involved. In relation to Count 6, he denied touching the girl's breasts. He said they were playing a Nintendo game in the bedroom. He denied ever having exposed his penis to her, and there was no word of truth in those allegations.

M gave evidence for the defence. In relation to Count 1 she said that the complainant was sound asleep when she arrived and she shook her and there was no response. In relation to Count 2 she checked the complainant after the asthma attack and found her fast asleep, and there was no contact of an improper kind between the appellant and the girl. In relation to the events said to give rise to Count 6, she said that, when she went into the bedroom, she saw no sexual contact of any kind between the complainant and the appellant.

The submissions made to this Court on behalf of the appellant by Mr Higginson, who represented the defendant at the trial, are twofold. There was a third ground of appeal set out in paragraph 7 of the perfected grounds which is not pursued.

The first submission is that the verdicts of guilty should be set aside as being unsafe in that they demonstrate inconsistency. Mr Higginson submits that the verdicts are inconsistent because the jury must have rejected the girl's evidence in relation to some incidents, and therefore it cannot be safe to rely on their acceptance of her evidence in relation to other matters.

As it seems to this Court, there is an obvious explanation as to why the jury reached different verdicts in relation to different counts. It is, as it seems to us, of significance that the three counts on which the appellant was acquitted by the jury - Counts 1, 2 and 6 - were the counts, and the only counts, in relation to which M gave evidence. It follows, in our judgment, that it was open to the jury to conclude that, although they were sure that guilt was established in relation to Counts 3, 4 and 5, about which M did not give evidence, they were not sure, in the light of the evidence which they had heard from her, that guilt was proved in relation to those counts. It is perhaps not without significance that, as appears at page 6D of the transcript of the summing-up, the defence, perfectly properly, relied upon the evidence of M as casting doubt on the evidence of the girl in relation to those matters about which she gave evidence.

There is, in any event, as it seems to us, a difficulty with Mr Higginson's submission in relation to whether there is any inconsistency at all. As it seems to us, there is no logical inconsistency in the verdicts returned by the jury, and unless there is a logical inconsistency, the question of whether or not the jury's verdicts can sensibly be explained does not generally arise. There have recently been a number of appeals to this Court based on allegedly inconsistent verdicts, and it is perhaps therefore worth emphasising that it is axiomatic that, generally speaking, logical inconsistency is an essential prerequisite for success on this ground: see Durante 91972) 56 Cr.App.R. 708, at page 714, and Warner, unreported, Court of Appeal, Criminal Division, transcript dated 17th February 1997.

There are, of course, exceptional cases of which Cilgram (1994) Crim.L.R. 861, provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is to be noted that in Cilgram this Court, differently constituted, expressly rejected the submission that, where a complainant's credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant's allegations.

As was pointed out by Evans LJ, giving the judgment of the Court in Warner, see transcript page 15F, such a conclusion would be contrary to the proposition that juries should generally be directed to give separate consideration to each count.

The jury in the present case was so directed. There was, as it appears to us, no logical inconsistency between the verdicts which they returned, but, in any event, there was, as we have indicated, a good reason for the jury to differentiate between the counts in the way which they did. Accordingly that ground fails.

Mr Higginson's further submission is based on the case of Makanjuola (1995) 2 Cr.App.R. 469. It is accepted that it was for the judge's discretion whether or not to give the jury a direction as to the extent, if at all, to which they should look for confirmation, and, in particular, as to whether the judge should warn the jury, if it was the case, to approach unconfirmed evidence of a complainant with circumspection. It is to be noted that at page 5D of the summing-up the judge did direct the jury expressly that there was no independent evidence to support the girl's account.

Mr Higginson accepts that, by reference to principle (3) identified by Lord Taylor CJ at page 473B in Makanjuola, there was no evidential basis for suggesting that the evidence of the complainant was unreliable. However, submits Mr Higginson, where the judge, in the exercise of his discretion, decides not to give a warning of the desirability of exercising special care in relation to unconfirmed complainant's evidence, it is particularly incumbent upon him to give the appearance of neutrality in his summing-up.

Mr Higginson makes no complaint about the directions which the learned judge gave as to law or fact in this case, but he draws attention to a number of passages in the summing-up which, he says, rendered it unbalanced. At page 7A, in relation to Count 2, and at page 7F in relation to Count 3, the judge referred to "little bits of detail" which he said the prosecution relied on as giving credibility to the girl's account. There is a similar passage to which Mr Higginson referred at page 8F, which relates to Count 3, and at page 9E, which relates to Count 5, and Mr Higginson also refers to a passage in relation to Count 6 at page 10E where the judge said:

"Is that the child talking to you who does not quite understand where she is? Or is that just some icing she is putting on this false story?"

Mr Higginson refers also to a passage at page 12E, where the judge said:

"What do you make of the two principle witnesses? The defendant and the girl ? Is the defendant the victim of wicked and false accusations, a totally innocent man the victim of a teenage girl for some reason making monstrous allegations? Or is the girl the victim of his lechery?"

Mr Higginson submits that by those passages the judge too clearly indicated his own preference in favour of the prosecution.

There are, as it seems to us, two difficulties with that submission. First, the jury acquitted on Counts 2 and 6, to which two of the passages relied upon by Mr Higginson relate. Secondly, in a number of passages, (including those at page 10E and 12E, to which we have referred, and a further passage at page 5E, where the judge said:

"Could she have concocted it for some reason or other? Or is she giving a detailed account of the way on six occasions the defendant took advantage of her?")

the judge balanced the question which he posed, which might, in isolation, have been construed as favourable to the prosecution, with a question which could be construed as favourable to the defence.

Having read the summing-up as a whole, we are driven to conclude that it was succinct, fair, accurate and balanced. We are unpersuaded that the second of the submissions advanced by Mr Higginson has more substance than the first. It follows that this appeal must be dismissed.