England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Tuesday, 8 October 2002

1. LORD JUSTICE JUDGE:This is an appeal against conviction and sentence by Shangara Shangara, who, on 27th April 2001 in the Crown Court at Coventry before Judge Cole and a jury, was convicted of indecent assault. On 24^th September he was sentenced to twelve months' imprisonment. The conviction recorded against him was on count 6 of a seven count indictment. The victim was a girl of 13 called S. The appellant was jointly charged with Kuldip Singh and Amritpal Ghuman on counts 1 and 2 with false imprisonment of M, another young woman aged 16 years and the complainant: on counts 4 and 5, with administering drugs to both complainants for the purposes of sexual intercourse. The appellant was jointly charged with Kuldip Singh on count 6. Count 3 charged Ghuman alone with the rape of M. Count 7 charged him, again alone, with indecent assault of S. That is rather a complicated series of counts. At trial, counts 4 and 5 were withdrawn from the jury by the trial judge. Not guilty verdicts were duly entered. The jury was unable to reach verdicts on counts 1, 2 and 3. On count 7, Ghuman was acquitted. On count 6, the jury which convicted the appellant was unable to reach a verdict on Kuldip.
2. The case was adjourned for a retrial of the counts on which the jury had been unable to agree. On the date fixed for the retrial, Ghuman pleaded guilty on count 3 to indecent assault. He maintained his plea of not guilty to rape. The plea was tendered on the basis that he had sexual intercourse with M with her consent, believing her to be over 16 years of age, and was accepted.
3. The Crown did not proceed against the appellant and Ghuman. In due course Kuldip was acquitted by order of the judge, the Crown having invited him to leave count 6 to lie on the file on the file, and the judge taking the view that a not guilty verdict should be entered. Ghuman was fined £500 and ordered to pay £500 towards the costs of the prosecution. The appellant was sentenced to twelve months' imprisonment. The issue on the appeal against conviction can be summarised in two words: inconsistent verdicts.
4. The facts can be dealt with very shortly. All the events with which the court was concerned took place one evening in July 2000 in Coventry. The complainants, two young women, not much more than girls really, decided to travel from their homes in Southall to Leicester to visit some friends. By mistake, they took a bus to Coventry, arriving there in the late afternoon. Having discovered their mistake, they then intended to travel on to Leicester, but found they did not have enough money for the fare. Although they were then aged 13 and 14 respectively, it was accepted by the Crown that they looked older than they in fact were.
5. They sought help from passers-by. Eventually they were picked up by a taxi driver, this appellant, a man of good character, much older than they were, something around 40 years of age. Later - and this narrative, of course, has to be considered in the context of the fact that the jury was unable to reach verdicts in many of the counts - the appellant, who was joined by Ghuman, then took them to a furnished but empty house in Coventry to which he, the appellant, had access. On the way he bought some drink at an off-licence and borrowed some glasses at a restaurant. Substantial quantities of alcohol were drunk.
6. Kuldip was another taxi driver. He turned up at the house and hoped to take the two young women on from Coventry to Leicester. He did not stay there very long. The allegation was that it was in this house, in those circumstances, that the alleged indecent assaults took place. The Crown alleged that they had, in effect, been falsely imprisoned in the house from their first contact with the appellant to the time when they left, not, as we repeat, the view which was found proved.
7. At some stage during the evening M and Ghuman left the others. They went to a separate room. They had sexual intercourse together. The complaint said that this was rape. The entire event was then denied by Ghuman. Eventually, as again we have already indicated, he pleaded guilty to indecent assault.
8. That left the two counts of indecent assault involving S. She gave evidence of an indecent assault by Ghuman. He was acquitted. We need not go into the details of that, although later in the judgment we shall demonstrate how the complaint came to be made and the way in which it developed.
9. Count 6 is the crucial count. The prosecution case involved evidence from S of indecent assault on her by the appellant. Kuldip was present. The part he played will be described in more detail, but the Crown's case was that he held her down on a sofa while the appellant removed all her clothes, except for her knickers, and touched her in all sorts of intimate and personal ways against her consent. The defence case, by both the appellant and Kuldip, was to deny all the allegations of indecency; nothing of the kind alleged by S had taken place.
10. We now turn to the basis of the appeal: inconsistency in the jury's verdicts. For the purposes of reminder, the jury convicted the appellant and were unable to agree in the case of Kuldip Singh.
11. The principles are set out in different ways. For present purposes, it is convenient to narrate the summary of the principles in the current edition of Blackstone at paragraph D23.23:

"Where the jury convict on one count but acquit on another, the Court of Appeal will quash the conviction on the grounds of alleged inconsistency between the two verdicts if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the case could have arrived."

12. The first feature of this case is that Kuldip was not acquitted by the jury on count 6. The jury could not, and therefore did not, agree. There was, in reality, no verdict, and the jury was discharged from giving one. However, the principle which applies to inconsistent verdicts has been held to apply equally to a disagreement: see Dayle and Batten.
13. We therefore move to the day of retrial when the Crown offered no further evidence on count 6. The decision was plainly not reached on the basis of a concession by the Crown that the complainant's evidence was no longer to be regarded as credible. Rather, it reflects a careful assessment of the practical realities as they existed at that time, including, as counsel confirmed, almost certainly that there were now verdicts or pleas which demonstrated that both complainants had indeed been victims of indecent assault. So we must re-examine the facts.
14. Although relevant in the broad sense, the mere fact that Singh's part in the indecent assault alleged in count 6 was much less than the appellant and that he did not personally touch her indecently, does not decide the issue on this appeal adversely to the appellant. The way in which the judge left the issue to the jury was perfectly clear:

"These are joint allegations in some cases, except for the rape, against more than one defendant and what you have to do, and particularly in the case of the indecent assault [that is count 6], is you have to -- a person can be guilty of an indecent assault if he takes an active part in, clearly, of the commission of the offence (in other words, if he were to touch the girl's breasts, that would amount to an indecent assault) but he would also be guilty of an indecent assault if he encouraged or assisted someone else to do that. So here the allegation is, so far as Kuldip Singh, for example, is that, while Shangara was indecently assaulting the girl, he, Kuldip Singh, was holding on to her so that he, Shangara, was able to do what he wanted. That would mean that, in those circumstances, if you were satisfied that they were true, that Kuldip Singh could be guilty of indecent assault even though it is not suggested that he touched her in an indecent way."

15. He summarised the issue in relation to count 6 in these words:

"The issue...is whether the incident happened at all and then you have to concern yourselves, if it did, who was involved?"

16. It is clear from that summary that, although the allegation made by the Crown was an allegation of joint enterprise between the two men, the verdicts did not stand or fall together. How then, we ask (in effect answering the question posed by Mr Balbir Singh in his helpful argument on behalf of the appellant) might the jury have been sure that the appellant was guilty but unable to be sure (at any rate so as to reach a verdict) of the guilt of Kuldip Singh?
17. We have analysed a substantial body of evidence. The short answer to the question is that, on an analysis of all the evidence, the complainant's evidence must have seemed less clear and convincing in relation to the case against Kuldip Singh than in relation to the case against the appellant. In reality, the allegation against Kuldip Singh was both vague and inconsistent, which could not be said of her description of the actions of this appellant.
18. First, we have considered the video interview, that is the first account of the incident given by the complainant. After describing how the whole incident had come about and developed, she said:

"Then all of a sudden Colin [that was the name she gave to Kuldip Singh] yeah, he put me down to the settee and Jimmy [that was the name she gave to the appellant] came on top of me. He started taking all my clothes off and that."

19. She then described, in considerable detail, precisely what happened after that. There are many pages of the interview, to which it is unnecessary to refer, until we move from page 17, which I have been quoting from, to page 43. She returned to Colin:

"WDC: That's Colin. Then at this stage you've told me about the incident that happened on the settee with yourself and Colin and Jimmy, yeah?"

20. There was no response. The Woman Detective Constable then said:

"And you said that you were put down on the settee and your clothes were taken off?"

21. There was no oral response. The witness nodded her head:

"Can you just describe in a bit more detail what actually happened there with your clothes coming off on the settee?"

22. The complainant then set out in detail how this incident with the appellant happened, culminating, without going into unnecessary detail, in the fact that because of her menstrual period, he had not removed her knickers. After that she said:

"He started feeling me up every where."

23. That was the allegation in summary. So there was a dramatic story of what Shangara, the appellant, had done to her, but in the whole of that interview, which then goes on in total for 60 pages as typed, virtually no reference whatever to what Kuldip Singh had done to her while the appellant was indecently assaulting her.
24. She was then cross-examined, first on behalf of the appellant. After 49 pages of description and cross-examination, she was asked:

"Q. What was Kuldip doing at that time?

A. Holding me back to the settee."

25. That, so far as the evidence is concerned, was the first time she had said that. That, it will be remembered, was the way in which the judge, when he came to sum up, left the allegation to the jury; in other words, the result of cross-examination by counsel for this appellant.
26. She was then cross-examined on behalf of Kuldip Singh. Mr Sandhu, acting for him, asked a number of questions. One of the problems was to identify when it was that Kuldip Singh had actually arrived at the house. There is a short passage in the transcript which demonstrates some of the confusion:

"Q Well, we know this phone call was made at half

past 8.

A. He must have been there.

Q. You are not sure?

A. I am not sure. I can't remember.

Q. Let me put it to you that he was not there.

A. He was not there?

Q. Yes, you have told us you are not sure at that time.

A. He was not there at that time?

Q. Yes.

A. No, actually he was, though, because I remember when Kuldip entered it was still light outside.

Q. So he was there?

A. Yes, he was there."

27. And then:

"A. Then he disappeared and then he came back."

28. Counsel returned to the issue where he was putting to the witness:

"Q The only thing he did with you was to hold him

down?

A. Yes.

Q. That is it, isn't it?

A. That is right.

Q. He never touched your breasts?

A. No, he didn't do anything.

Q. Right. That is your evidence, that all he did was he held you down."

29. Counsel then put his client's case to the witness that Kuldip Singh had never touched her and she asserted that he had.
30. Cross-examination then continued on other issues, and then this exchange took place:

"Q Now, when you were being, you say, being held down by Kuldip and Shangara was touching you and taking your clothes off, where was M [the other complainant]?"

31. The issue was then examined over approximately half a page of transcript and then this question was asked:

"Q So she was not in the same room as you when you were being touched up by Shangara and Kuldip ...?"

32. to which the witness answered:

"A. The time when I was being touched up by Shangara and Kuldip, she was in the same room."

33. There was then an inaudible question by counsel, who then asked:

"Q Well, you say Kuldip was holding you and Shangara was touching you.

A. No, she was not there at that time. She was only there that time when them two were touching me up."

34. Then later she went on to say:

"A. The only thing they done to me was when Kuldip and Shangara were feeling me up."

35. Counsel asked this question:

"Q Let us get this right. You told us a few moments ago that the only thing Kuldip did was hold you while Shangara was touching you.

A. You are asking me about the situation on the sofa. That is the only thing he done on the sofa. I am not on about him in other bits."

36. So back the cross-examination went and she said that on the sofa she had been held down and in the living room Shangara and Kuldip were touching her breasts.
37. The last answer she gave in cross-examination, perhaps summarises the problem:

"A. he (inaudible) me back to the settee and when he came to the phone box."

38. The allegation that Kuldip Singh had ever himself personally touched her in an indecent way emerged for the first time in the course of those questions and answers late in the cross-examination of the complainant on behalf of Kuldip Singh. These hesitations and uncertainties, and the steady developing of the allegations were features which were absent from the allegations made by the complainant against Shangara. Interestingly enough, they were also present in relation to allegations involving Ghuman's alleged indecent assault on her.
39. We take this part of the judgment from the helpful written skeleton argument by counsel for the Crown. The complainant had made no complaint whatever about Ghuman in relation to any incident involving herself during the original account of the incident. She said, having concluded her account, that she had nothing else to tell the police officer. Then later, she said that he had 'got off' with her three times, by which she answered, when she was asked, that he had kissed and snogged her. She then indicated twice that nothing else had happened with Ghuman, and it was only after the end of the interview that she went on to allege that he had indeed touched her indecently over her clothing.
40. The jury, therefore, was faced with a clear, apparently consistent, account in the case of the allegation against Shangara, and a much less satisfactory account in the case of Kuldip Singh and Ghuman. The way in which the allegations developed may reasonably have led some jurors to the conclusion that, although they were perfectly sure about Shangara's guilt, doing exactly what the judge had directed them to do, to take each case against each defendant separately, they were not prepared to be sure of Kuldip Singh's guilt. The judge had directed them:

"...you consider each accused separately on each charge separately and, just for example, [because] you would have convicted one of the defendants on one count, does not necessarily mean that you would convict the others, or the other way round. Separate trials going on together. You have to be satisfied that the particular defendant on that particular charge is guilty before you can convict him."

41. The direction in law was right and it seems clear to us that the jury faithfully followed the direction that the judge had given them.
42. It did not follow that, because they had concerns about the allegations against the other two defendants - and in particular Kuldip Singh on count 6 - that it would necessarily follow that they should have doubts about the allegation made against Shangara. They were bound to consider each case separately, and that is what they did.
43. We have examined the evidence and given a fairly lengthy judgment. The clear view that we have formed is that there is no reason to doubt that the trial jury adopted an entirely logical approach to the evidence they had. They applied the directions that they were given and the verdicts which were reached, or the difference between their conclusions on count 6 in relation to the appellant and Kuldip Singh, are entirely comprehensible. In those circumstances, the appeal against conviction will be dismissed.
44. That leaves an appeal against sentence. This is not an altogether easy case fully to unfathom. The appellant was 40 years old, of previous good character. The girl made herself out to be much older than she actually was. But it was this appellant who was the first person of all to be involved with them and knew that they were in the wrong place - not at their intended destination. That said, it was not proved that he had falsely imprisoned either girl, and the jury's verdicts there have to be accepted.
45. Looking at the sentencing remarks, the gravamen of the case against the appellant went not to consent, but to the girl's age at the time. The jury had been directed in relation to the issue of consent that, given the girl's age, she could not, as a matter of law, consent to any acts of indecency. Looking at that direction and the way in which the judge expressed himself in his sentencing remarks, it rather looks as though he was taking the view that there may have been consent in fact even though that did not provide any defence in law. He says:

"I accept that S was perhaps unwittingly overdressed, making herself out to be more than the age that she clearly was at that particular stage."

46. He then went on -- and this was obviously a significant factor, and rightly so -- in the sentencing decision:

"...that is where your added experience of life must have told you that she was someone who was under 16 at that particular time."

47. Our attention has been drawn to the sentencing decision in the case of Ghuman, who was fined £500 for having had unlawful sexual intercourse. But, as we have already indicated, he had pleaded guilty on a specific basis, and, at 22, he was very much younger than the appellant. We do not find the sentencing decision in the case in relation to Ghuman of assistance to us either way in relation to this appellant.
48. We have reflected on the appellant's age, his role in the incident as it developed, and the fact that the case proceeded as a trial. We have come to the conclusion that his activity crossed the relevant threshold but that the sentence imposed on him was excessive given the facts as best we have been able to elucidate them.
49. A prison sentence was appropriate for a man of his age who had become involved in the way he had with a girl of the complainant's age. We think that the appropriate sentence for this appellant was one of six months' imprisonment.
50. We add that, although the appeal against sentence is allowed to that extent, we do not regard the facts of this case and the sentencing decision which we have reached on them as of any interest beyond the instant case. The result is that the appeal against conviction is dismissed. The appeal against sentence is allowed and the sentence of twelve months' imprisonment is reduced to six months' imprisonment.
51. MR BALBIR SINGH: I am grateful, my Lord. That has one effect, in that on the original sentence the defendant was required to register for a period of ten years. That registration requirement reduces to a period of seven years where the sentence is six months.
52. LORD JUSTICE JUDGE:Yes. And that will follow too. Thank you very much.