Case No: 2000/02458/Z2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 19th December 2000
LORD JUSTICE HENRY
MR JUSTICE SACHS
and
SIR BRIAN SMEDLEY
(sitting as a Judge of the Court of Appeal Criminal Division)
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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J Farmer Esq (appeared on behalf of the appellant)
Miss L Tayton (appeared on behalf of the Crown)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE HENRY:
1. This is the judgment of the Court. On 29th March 2000 in the Crown Court at Norwich before His Honour Judge Barham, the applicant was convicted of six counts of indecent assault. Verdicts of not guilty were given by the jury on the judge's direction in relation to a count of indecency with a child (Count 4) and a further count of indecent assault (Count 6). On 9th May 2000 he was sentenced to 42 months imprisonment on each count, to run concurrently. Having been convicted of a sexual offence to which Part 1 of the Sex Offenders Act, 1997 applies, the applicant was required to comply with the provisions of Section 2 of the Act (Notification to the Police). Section 44 of the Criminal Justice Act, 1991 was applied to the period of release on licence. He was therefore sentenced to a total of three years and six months' imprisonment. The Single Judge has referred his applications for leave to appeal against conviction and sentence together to the Full Court, granted legal aid (counsel only) and directed that the prosecution should attend.
2. The complainant in this case is L (S), born 17th February 1979. She is the natural daughter of the defendant L (R) (born 3rd May 1958). The indictment reflects a course of sexual abuse upon L (S) from when she was between the ages of 8 and 16. The case was that the applicant involved her in repeated mutual masturbation, usually with the use of lubricants, which would last until the defendant ejaculated.
3. Mr L's defence was a total denial. The allegations were a "... malicious load of rubbish". He said the complainant was psychologically disturbed. The judge said there was resentment, which the defence characterised as "huge antagonism" to her father. He went into the witness box and gave evidence. He was forthrightly and effectively defended by Mr F, who also appeared before us.
4. Mr Farmer acknowledged that there was nothing wrong with the trial. The evidence in this case lasted over four days. Both the complainant and the defendant were in the witness box over two days. Each called supporting evidence. The summing-up was fair and full. There were no procedural irregularities. In short, it was a fair trial, but Mr Farmer submits the jury should not have believed the complainant, and that this Court, on appeal, should set the verdicts aside on the basis that they were unsafe.
5. The basis for that submission is that L (S) was not a good witness. She gave inconsistent accounts in the various versions of her accusations. She was not good either on dates, or on the sequence in which things happened. But the difficulty with all these criticisms of her is that the jury saw and heard her give evidence over two days. Her evidence was tested by skilled and detailed cross-examination, and the jury believed her while disbelieving her father.
6. A good example of the criticisms that Mr Farmer makes of the complainant deals with 9th November 1997, when she wrote to her parents complaining that her half-brother Alan had sexually assaulted her over a period. She was to say that that sequence of events started at the same time as, but independently of, her father's assaults on her. If that was right, would she write to him, her abuser? Would she say, as she did in her contemporaneous statement
"Since I have spoken to [the] police and my parents I feel extremely relieved"?
And would her father go straight to the police if he was the abuser. Those were jury points, and the jury were the judges of them.
7. The judge directed the jury to look for support for her evidence, and correctly identified the support that there was. But the essential difficulty remains. As Lord Lane CJ said in R -v- Galbraith [1981] 73 Cr App 124 at 127:
"Where however the prosecution 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 upon 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."
8. That was the position here, and Mr Farmer recognises it. But he reminds us of the position exemplified by the case of R -v- Cooper [1969] QB 267:
"... a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this Court will be very reluctant indeed to intervene. It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. ... (W)e are ... charged to allow an appeal against conviction if we think that the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. 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" (at pp 271).
9. As the editors of Archbold 2001 remind us (7-47 - 7-49) not everyone is happy with the concept of a lurking doubt in a Cooper situation. Lord Lane CJ put the matter this way in the unreported case of Wellington (25th March 1991 No 6651/Y1/89:
"We have ... to decide whether, in the light of further arguments which we have heard, the verdict is safe and satisfactory, or whether we feel a reasoned and substantial unease about the finding of guilt".
10. We have listened carefully to Mr Farmer's attack on the jury's findings. He took us through the counts and the evidence relating to them one by one. The example we have given in paragraph 6 gives the flavour. But we came back to the same conclusion each time, namely that the jury had seen the complainant, and heard her tested, and her shortcomings as a witness analysed. Her father went through the same process, as did their respective supporting witnesses. At the end of the day the jury believed the complainant. In our judgment they were entitled to believe her, and having heard all that Mr Farmer had to say, he has not persuaded us that this is one of those rare cases where this Court can or should set aside the jury's verdict after a fair trial on an issue depending on credibility. These issues were classic jury issues, the jury is the preferred judge of fact under our criminal law, the jury were better placed than us, who have just the transcript, to get to the truth. They were entitled to prefer the evidence of the complainant. The verdicts appear to us to be safe.
11. There is also before us an application to hear further evidence from L (SH), a sister. We have considered that evidence. We do not consider that that evidence, even if accepted, is specific enough or conclusive enough to afford any ground for allowing this appeal. It is at the fringe of the case, and at best is only relevant to a single count, where the evidence of Mrs W is capable of supporting the complainant's evidence. The evidence is of a vague nature, and not central enough to affect the safety of these convictions.
12. Accordingly, this application for permission to appeal against these convictions is dismissed.
13. There was also before us an application for permission to appeal against sentence. The sentences passed were in our view low having regard to the gravity of the offending. This doubtless was because of the state of the applicant's health, which the judge took into account. The submissions made to us are that his sentence is the harder to bear because of his medical condition. He is handicapped by total blindness in one eye, and partial blindness in the other. He suffers from non-insulin dependent diabetes. We have obtained up-to-date medical reports. The only worrying worsening feature is the 30kg weight loss in six months, which the prison medical authorities are alive to, and are keeping an eye on. The Home Secretary has powers to deal with any worsening of that condition and better placed to judge the need than this Court. The question for this Court is whether the sentence totalling 3½ years was arguably manifestly excessive. In our judgment it was not, and the application for leave to appeal against sentence is also dismissed.