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Cite as: [2000] EWCA Crim 46

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R V John Michael Porter [2000] EWCA Crim 46 (22nd June, 2000)

Case No: 99/5119/W4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of justice
Strand, London, wc2a 2ll
Thursday 22 June 2000

Before:

LORD JUSTICE PILL
MR. JUSTICE SACHS
AND
MRS. JUSTICE STEEL

____________________
Regina
V
John Michael Porter
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
Mr Michael Conry Appeared on behalf of the Appellant
Mr John Maxwell Appeared for the Respondent
____________________
Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice Pill:
On 22 July 1999 in the Crown Court at Worcester before His Honour Judge McEvoy and a jury, John Michael Porter ("the appellant") was convicted of six offences of indecent assault on a male. On each of counts 1 and 2 he was sentenced to 9 months imprisonment concurrent. On count 3 he was sentenced to 6 months imprisonment consecutive. On each of counts 5 to 7 he was sentenced to 3 months imprisonment concurrent inter se but consecutive to the other sentences. The total sentence was 18 months imprisonment. The convictions on counts 5 to 7 were by majority of 10 to 1. There was an acquittal on count 4. The appellant appeals against conviction by leave of the full court.
The appellant, who was at the date of conviction aged 56 and of good character, had been a science teacher at B School since 1979. He taught children of both sexes between the ages of 9 and 13. It was alleged that he had indecently assaulted four boys at the school: OM between 1 September 1985 and 8 October 1987 (counts 1 and 2); AD between 1 September 1994 and 31 July 1996 (count 3); EJ between 1 January 1997 and 31 May 1998 (count 5); and JP between 1 September 1995 and 11 May 1998 (counts 6 and 7).
When he gave evidence at the trial, M was 22 years old and a graduate of Imperial College. When he had asked a question at B School, the appellant told him to wait until the end of the lesson and he would answer it in the science laboratory. The appellant stood next to him, put his hand down his trousers and felt his genitals. He said: "Did you enjoy that? There, that's better, isn't it?". He did that on about four occasions. On another occasion, the appellant put his hand down the boy's trousers in class and touched his testicles.
M's parents complained to the headmaster who spoke to the appellant. The appellant admitted to the headmaster that the had patted bottoms and put his hand on backs. The headmaster sent him a warning letter.
The evidence of D, J and P was given by way of video interview followed by cross-examination by video link. D said that, when he was doing an experiment, the appellant put his hand down the back of the boy's trousers and "cupped the muscly bit" of his bottom. It happened regularly and was underneath his boxer shorts. Eventually, D complained to his mother who spoke to the headmaster who spoke to the appellant. The conduct stopped for a couple of months then started again.
J's evidence was that the appellant forced him to sit on his lap and touched his bottom. It happened about five times. He also said that he saw the appellant touch P on the bottom.
P said that the appellant pulled him onto his lap, touched his bottom and moved his hand between his legs. He discussed this with J and they told their friends.
In May 1998 P's father complained to the headmaster that the appellant had pulled James up by the neck. That assault was not alleged to be an indecent assault. He also complained that the appellant had touched P indecently. As a result, the police interviewed both P and J and the interviews were taped. The appellant was subsequently suspended from his employment.
When the appellant was interviewed on 27 June 1998 he denied indecent assaults on the boys. He had taken hold of P by the neck because he was being disruptive in class. M's allegations involved a misinterpretation of his, the appellant's, behaviour. The appellant was further interviewed on 21 September 1998. He denied all allegations. He had been warned officially about his behaviour towards M but the warning did not involve an allegation of touching genitals. D was an untidy boy and the appellant said he made a bit of a game of tucking in his shirt. He denied touching the boy's backside underneath his shorts.
When giving evidence, the appellant said that M was a bright and interested boy and he spent time talking to him in class. The appellant tried to avoid being alone with a child but it was sometimes difficult to avoid it. The appellant said that D had exaggerated what had happened. The appellant denied putting his hand down the boy's trousers and cupping his bottom. Physical contact with J and P was denied. J was enthusiastic but his behaviour was affected by P who was disruptive and attention seeking. P and J were vindictive and had made up the allegations against him.
Both the headmaster and the Reverend JC gave evidence that the appellant was dedicated and hardworking. The headmaster agreed that the warning letter he had sent to the appellant had not fully set out the complaint made to him, that is the alleged touching of the testicles.
Leave has been sought and granted on the hearing of this appeal to call the evidence of two girls in the class of P and J who did not give evidence at the trial. The central point in the appeal is that, had the appellant behaved as P and J alleged, it must have been obvious to other members of class and the two witnesses saw nothing.
The appellant's solicitor swore an affidavit as to why the witnesses were not called at the trial. He had approached the headmaster in advance of the trial and was told that neither the children nor their parents wished to be involved. The police confirmed to him that all the children or parents who had been mentioned by the complainants had been approached by either the police or the social services and had all declined to make statements. It was only after reports of the trial in the newspapers that ER, CM and AR came forward. ER's parents spoke to the headmaster to say that ER did not see any of the acts complained of by J and P (defence counsel's advice of 6 August 1999). As to the relevance of the proposed evidence, the appellant relies upon P's statement in his video interview that "He does it literally every time he's done it, it is in front of the class" and J's statement "I think, I think everyone probably saw it 'cos they were looking at me and saying `Oh this is what he did' and so on".
The summing-up was, if we may say so, comprehensive and fair. It is not criticised on behalf of the appellant. An appropriate direction was given upon similar fact evidence. The video interviews of D, J and P were also comprehensive and no complaint is made about their fairness.
On behalf of the prosecution, it is submitted that had they seen fit the defence could have made arrangements to interview other pupils in the class before the trial. They must have made a tactical decision to rely upon the absence of witnesses supporting that of the complainants rather than seek such evidence themselves. While we took the view that the proposed fresh evidence should not be excluded on that ground, there is no doubt that at the trial the point was strongly taken that there was no supporting evidence from non-complainants and that classmates had declined to make statements. In considering their verdicts, the members of the jury were well aware that, notwithstanding the statements of J and P as to the acts being visible to members of the class, there was no supporting evidence from classmates. The evidence of the police officer was that no one was willing to make a statement.
In her evidence to this Court, M, now aged 13, said that she was in the same class as P and J and never saw either of them on the appellant's lap in class. In relation to P she said "I guess I would have seen it" and "I think I would have noticed if that had ever happened. In relation to J, she said that she had never seen anything like that. She would have seen it or someone would have seen it or J would have said something.
Under cross-examination, M said that the appellant would normally sit on a stool at an ordinary desk in front of the blackboard. She used to sit in different places in class and P also changed places. P was naughty and difficult. She worked hard and concentrated. Sometimes P distracted her and sometimes she just ignored him. She normally took her work to the desk at the blackboard and did not remember going to the teacher's desk in the corner of the classroom where there was a desk and an ordinary chair. She would have thought it very weird if someone sat on the teacher's lap. She never saw the appellant touching either of the boys. She did not think she had seen him touching or stroking the small of the back or shoulders. After the appellant had left, she had been approached by a social worker and said she had not seen anything. She did not say that she did not want to be involved.
ER, now aged 14, was in the same class. She always sat at the same desk for a term as did other pupils. She never saw the appellant pull P or J onto his lap and would have done so. The only physical contact was at the back of the class when the teacher had to lean over pupils to see the bench and touch them on the shoulders. At the front, he patted backs.
P was the naughtiest in the class. The desk the pupils approached was in the corner of the classroom. She would think it a little bit wrong and not something you normally do to sit on the teacher's lap. If she had seen it, she would have noticed and would have gone on with her work. If P had been sitting on the side of the desk away from the blackboard, she could not have seen his waist. Had he been on the appellant's lap, she would probably have seen it.
Evidence was also given by AR, now aged 18, the brother of ER. He stated that after the appellant was suspended, P was bragging about getting the appellant out of the school. He said that if anyone else tried anything, he'd get them out of the school. AR took this to mean discipline and not "touching him up". He wasn't taking anyone's side. We say at once that we do not consider the evidence of AR to be helpful to the appellant's case. That is because P's boast is as consistent with his complaints being true as to their being untrue.
The duty of the court, under section 2 of the Criminal Appeal Act 1968, is to decide whether, in the light of the further evidence, the conviction is unsafe. In Callaghan [1989] 88 Cr App R 40, Lord Lane CJ stated at p 47:
"Although the court may choose to test its views by asking itself what the original jury might have concluded, the question which in the end we have to decide is whether in our judgment, in all the circumstances of the case including both the verdict of the jury at trial upon the evidence they heard and the fresh evidence before this court that we have heard, the convictions were safe and satisfactory. If so the convictions must stand. If not the convictions must be quashed."
Having cited that passage from the judgment of Lord Lane CJ, Lord Bingham CJ stated in Steven Jones [1997] 1 Cr App R 86, 94:
"It seems plain on the language of the statute and on authority that the court is obliged to exercise its own judgment in deciding whether, in the light of the new evidence, the conviction is unsafe."
For the appellant, Mr Conry submits that the evidence of M and ER cannot stand with the evidence of the complainants P and J that others present in class would have seen the appellant's conduct. If the convictions in relation to P and J are unsafe, the convictions in relation to M and D are contaminated. The jury were invited to consider the similarities between the allegations of the four boys when considering the evidence of each of them.
We have regard to the bulk of material before the jury, the full ventilation of issues at the trial and the comprehensive summing-up. The jury had every opportunity to assess the credibility of the witnesses, both complainants and appellant. The defence made the point that there was no evidence supporting that of P and J in a context in which each of them said that others present in the class saw what was going on.
In the circumstances, we consider the additional evidence to be of only very limited value. We do not doubt that each of the girls was trying truthfully to remember the relevant events or lack of them. However, we did not find it conveyed a convincing picture of events in the classroom at the time of the J and P counts in the indictment. Against the background we have described, it does not create in our minds a doubt about the safety of the verdicts. Moreover, while we considered it appropriate, in the interests of justice, to admit the evidence, the weight to be attached to it is in our judgment influenced by the fact that it was not forthcoming when enquiries were made by headmaster, social services and police at the material time but only after the trial was over. That is not a criticism of the appellant's solicitor who was told that classmates had declined to make statements. This additional evidence in relation to the complaints of two of the four complainants, does not create a doubt as to the safety of verdicts reached following a well-conducted trial.
The additional evidence, of course, has no direct bearing upon the credibility of M and D whose evidence was accepted by the jury. They each gave evidence of specific indecent assaults against them at times particular to each of them which were also different from the period of time of the alleged assaults upon J and P.
For those reasons this appeal is dismissed.