England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CARDIFF CROWN COURT
(HIS HONOUR JUDGE GRIFFITH WILLIAMS QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 December 2002

Lord Justice Potter:

1. On 16 June 2000 in the Crown Court in Cardiff before His Honour Judge Griffith Williams QC following a 10 day trial, the appellant was convicted by a majority (11:1) of counts 2 and 5 of a 6 count indictment (both those counts charging rape) and on the same day he was sentenced to 12 years imprisonment on each count concurrent. No verdict was returned in respect of counts 3 and 6 (incest) which were alternative counts, and counts 1 and 4 (indecent assault on a female) were ordered to lie on the file in the usual terms. Having been convicted of a sexual offence to which Part 1 of the Sex Offenders Act 1997 applied, the appellant was required to comply with the provisions of s.2 of the Act (Notification to the police) indefinitely. He appeals against conviction by leave of the single judge on the basis of his application made for permission to call fresh evidence.
2. The complainant in respect of all the counts was J (born 1 August 1987) the natural daughter of the appellant and his wife B. There were three other children of the family: C (born 29 September 1983); K (born 13 July 1985) and T (born 15 January 1990). The prosecution case was that between 1 August 1997 and 22 October 1999, the appellant sexually abused J between the ages of 10 and 12 years. The complaints were not made at an earlier stage because of violence having been inflicted on the complainant by both her parents. The defence case was a complete denial of all the allegations and reliance upon certain inconsistencies in the complainant's evidence. As the judge instructed the jury, the issue for them was whether the complainant was telling the truth.
3. The evidence for the prosecution consisted principally of a video-recorded interview by J on 26 November 1999. She described an occasion when she was in her mother's bedroom playing a Sega game and the appellant joined her, putting his hand down her skirt and inside her knickers and touching her between the legs with the palm of his hand. She shouted "Stop it" and he punched her upper arm. She first said it was her left shoulder but later that it was her right shoulder. When she cried, he slapped her left cheek and told her to stop. She was wearing a short skirt, a red belly top with hearts on it, bra, pants, white socks and shoes. The appellant undressed her before taking off his jeans and t-shirt. She described his 'willy' and said he bounced on the bed. He started pulling her up on the bed and then shagging her. When she told him to stop, he hit her and tied her to the bed using a length of blue rope which was passed behind the headboard and board at the bottom of the bed. This incident lasted about an hour and he then dressed her but forgot to put her socks and shoes on. She went downstairs but, when the appellant spoke to family friends who had arrived, J went upstairs to her brother's room. She could not say how often this happened, but it was about every day or something like that. She said it started when she was 10 years old.
4. On 9 May 2000 the complainant was shown her earlier interview of 26 November. She said her mother knew what was happening because the appellant used to beat her mother in order to get J to go upstairs on occasions of her abuse. A further video-recorded interview took place on 16 May 2000 when J described the appellant's violence towards her mother and how her mother made her go upstairs to the appellant and hit her if she refused. She said she was sad when she was slapped by her mother but the marks did not last long and she thought her mother was afraid of the appellant. Her mother told her to go upstairs a couple of times.
5. When questioned via the video link, J identified the rope used to tie her up after she was 11 years old. It was kept in the bedroom and was tied round her wrists and ankles and passed behind the bedhead and the board at the bottom of the bed. However she said that in May and August 1999, when her arm was in plaster, she was not tied down. She denied making up the complaints of sexual abuse. She said the last incidents occurred on Saturday 16, Sunday 17, and Tuesday 19 October 1999. When she had been tied up she did not show anyone the marks which it had caused. When examined by a doctor on 25 October, she had injuries to both legs which she said had been caused by her parents. She said the appellant started sexually abusing her when she was about 10, after school. She agreed that the family friends earlier referred to called at the house most nights, but said nothing happened when they were there. She said she had screamed but did not do so on every occasion. When taken into care she did not want to go home again because she did not want the appellant to do it to her again, or for him to do it to anyone else.
6. S (aged 12) a friend of J gave a video-recorded interview on 6 December 1999. She said she had become friendly with J in late November 1999 and they shared secrets, like who they went out with and who they kissed. J said that her father was abusing her and that, if she did not want sex, he would tie her to the bed and then undress her. She also said her mother had hit her with a slipper and her sister was nasty to her. J had told her that she had to give her father an erection and he would have sex with her and then dress her quickly before her mother returned from the shops.
7. Mrs Baseley, J's teacher, said that J had told her on 29 September 1999 that she had been struck with a slipper and on 20 October she again complained of being hit. On 22 October a protection order was made and she was placed with foster parents.
8. Amanda Heath, J's foster carer, said that J was placed with her on 22 October 1999 and three days later complained that her parents had beaten her. Cerin Evans, a social worker, said that J spoke to her on 25 October saying that she had been hit by her mother and showing her a bruise on the leg. However when Dr Shastri examined J and found two fading bruises, one on the right upper thigh and the other on the left inner thigh, J did not give any explanation as to how they had occurred.
9. Penelope Lovell, a child care support worker, saw J for the first time on 28 October. She discussed acts of violence by both parents and said there was bad feeling between her and her sister C who was favoured. On 23 November, J told her that the appellant had touched and penetrated her in her parents' bedroom while she was playing on the Sega and when her mother was out of the house shopping or at other times was with C. The appellant had put his willy inside her but she found it very difficult to explain the sexual activity.
10. Finally Dr Ann Tao examined J on 30 November and found she was in early puberty and had not yet started her periods. J was not clear about the frequency of the sexual abuse and gave no details as to when the last episode had occurred. The doctor said J was not a virgin and concluded that the genital findings were diagnostic of a penetrative injury consistent with the story provided by her.
11. When the appellant was arrested on 30 November 1999, he consistently denied all the allegations made against him in the interviews which followed. In evidence the appellant similarly denied the allegations. He said that his first marriage had ended in divorce in 1981 and he had remarried in the following year. He had a healthy sex drive, but suffered a bent spine which caused him pain. His wife had rheumatoid arthritis and needed help getting upstairs. He said that when the children came home from school, K and C would go upstairs after their meal but J would watch television before going out and not returning until between 7 and 8.30pm. Bedtime was 9.00pm for all the children but, as a rule, he did not go upstairs. If he chastised the children, which was not often, he would give them a clip round the ear and it was usually a case of doing it to all four at the same time. He said that J did not own or wear a short black skirt or a short red-coloured belly top with love hearts on it. The rope to which J had referred was one left in the house by his brother in about June 1999 and had been used at the caravan to secure ramps for wheelchairs used by members of the family.
12. The appellant said that at home they held open house with neighbours popping in. One couple normally came in at about 3.15pm and left about 5.10pm and the couple earlier referred to would call three or four times a week from 7.30pm till about 11-12pm. The appellant said his brother had heard a rumour in September 1999 that J had made a complaint at school. He said there had been an occasion when she argued with her mother and he had punched her on the shoulder, but that was the only incident of violence he could remember at that particular time. When cross-examined, he said he was shocked about the rumour of violence and questioned J who just shrugged her shoulders and denied it. He said there had been no violence in the week before 22 October 1999 when J was taken into care. As for the Sega, it was bought after C's birthday on 29 September and had been moved from T's room to his own bedroom where it stayed for roughly a week before J was taken into care. J had played on it only on the Monday night. J appeared to love him and her mother and was part of a loving, happy family. He could recall no rows and had not seen her in the company of boys and, so far as he was concerned, she did not behave inappropriately. He said J's bruises may have been caused by getting in and out of a bunk bed.
13. J's sister C gave evidence, she said that she and K normally stayed in playing on the Sega or watching television and T spent most of his time in his room playing on his Sega. J would be out between 5.30-6.00pm until 7-7.30pm, whenever it was not raining. When she came home she would either play with C and K in their room or with T in his room. A new Sega had been bought for J after she became jealous and started an argument over two skirts which had been bought for C's birthday. That Sega was in their bedroom until S, the appellant's son from his first marriage had come to stay a couple of days after her birthday. In cross-examination she was confused about the date at which the Sega had been taken from their bedroom. She said the appellant occasionally 'clipped' the children but she had never seen him strike her mother. She said she got on well with J, was close to her and basically they were a happy family. J was not picked upon. She had seen the appellant hit J across the shoulder a few days before she was taken into care. That was because she had rolled up her skirt to shorten it.
14. Finally J's mother gave evidence. She said she had never been hit by the appellant and the rope was never in their bedroom. She said she showed J the same love she showed all her children and could think of nothing that was upsetting her. She had never hit J because her arthritis was such that if she hit her children it would hurt her. She spoke to J about the rumour going round about the violence and J denied having started it, saying that she had told Mrs Baseley she thought her mother was going to hit her. She agreed that her husband was the dominant partner, but said he did not insist on getting his own way.
15. The judge gave a long and careful summing-up of admirable fairness, which is not criticised in any way.
16. The grounds of appeal, settled by solicitors who did not act at the trial, stated as follows:

"4. The complainant's credibility is central to the issue of the appellant's guilt. Trial counsel and solicitors advised that care should be taking in deciding whether to call evidence as to the complainant's propensity for lying. Witnesses had confirmed that the complainant was a liar but were not called to testify because two of them had previous convictions for dishonesty and one, LW, was the daughter of the appellant's first marriage and had been the victim when the appellant was convicted of incest in August 1982.

5. Counsel should have advised the appellant of the importance in calling witnesses as to credibility even if the balancing act resulted in LW not being called and the appellant's previous conviction being revealed to the jury. At the very least, the two witnesses with previous dishonesty convictions should have been called to testify, their convictions being largely an irrelevance against the seriousness of the allegations facing the appellant and inevitable consequences of a conviction."

17. Because of the criticism of trial counsel and solicitors, the appellant was invited to, and did, waive legal professional privilege so that trial counsel and the solicitors then acting responded with their comments. In the event, the suggestions of negligence or oversight on the part of previous counsel and solicitors have not been pursued on this appeal. We are satisfied that they were not justified. Whether or not the judge would have permitted such evidence to be called, the attack on the credibility of J would have been likely to lead to admission of evidence as to the appellant's previous conviction for incest which it was obviously in the interests of the appellant should be kept from the jury, not least because it involved the previous victim being tied to the bed. It is apparent to us that the appellant was properly advised.
18. The single judge granted leave to appeal, and the appeal has been pursued before us, on the grounds that fresh evidence going to the credibility of J has been obtained since the conviction of the appellant, which evidence was previously unavailable to the appellant. Such evidence relates to statements made by J after her conviction which, it is submitted, raise real doubts about the safety of the appellant's conviction. The first is the evidence of a 16 year-old schoolfriend of J whose evidence suggests a propensity on the part of J, since the conviction of the appellant, to make false allegations of sexual intercourse against others. The second is the evidence of J's mother and sister, coupled with that of SW, a social worker responsible for the care and progress of J, concerning a statement made by J and subsequently withdrawn, to the effect that she had been raped by a First-Aid man called Roger.
19. Counsel for the appellant and for the Crown were agreed that the court should proceed at once to hear the oral evidence of the witnesses concerned de bene esse. In relation to the statutory criteria set out at s.23(2)(a)-(d) of the Criminal Appeal Act 1968, the Crown accepted under (d) that there was a reasonable explanation for the failure to adduce the evidence at trial and that (c) was not applicable since the evidence sought to be called related to post-trial events; however the Crown reserved its position upon the questions (a) whether the evidence appeared to be capable of belief and (b) whether the evidence might afford any ground for allowing the appeal.
20. The following is a summary of the evidence adduced before us. J's mother stated that she used to have long telephone conversations with J in the home in which she was living, once taken into care. On 6 September 2001 she and J's sister C had a long telephone conversation with J lasting some two hours. According to the mother, C sat nearby the mother and would talk to J from time to time, but she was not able to overhear the things which J said when talking to the mother. The mother would therefore repeat what J had said to the sister. In the course of the conversation, J became upset and was crying. In the course of the call, in circumstances which the mother did not elucidate, J said she had been tied up on a bed and somebody had raped her. The mother had asked her who had done it and J whispered that it was the First-Aid man. The mother said she did not know who that was, but that C said it was a man named Roger. The mother said she then realised they were talking about a man who lived about half a mile away and was the husband of a woman who gave First-Aid classes which had in the past been attended by C, J and K. The mother said that she wanted J to 'get it off her chest' and said to her 'Is this the truth? If you are going to tell the truth, do it'. The mother indicated that she wanted to speak to a social worker who came to the phone and the mother told her that J had something to say. The mother asked the social worker to write down what she had to say and let the mother's solicitor have a copy.
21. The mother was cross-examined on the basis that she had herself been pressing J to change her story about her father and playing upon her unhappiness at having split the family. She denied this. However she admitted that she had not been going to visit J at that time, partly because J complained that the mother was getting her upset and putting pressure on her to change her story. The mother admitted that her husband was in prison at the time of the conversation and that she had spoken to him. However she said that she had never asked him if he intended to appeal and certainly did not know that he had been advised there were no grounds for appeal. She said that she was still close to her husband and stood by him. She had never been prepared to believe the allegation which J made and she considered J was a liar. She agreed that a few days before, on 2 September 2001, J had telephoned her very upset and crying. She had said she wished to jump through a window and run away. The mother also agreed that on 11 September she had had a conversation with a social worker in which the social worker told her that J had made a complaint that she (the mother) was upsetting her by her telephone calls. The mother said she had spoken to the social worker because she thought she might be blamed for putting words into J's mouth. She said that she knew by that time that the man called Roger had been prosecuted for a number of sexual offences with young girls, because, in this connection, the police had called to see C who had herself been grabbed by Roger on one occasion. However, she said she did not know Roger had been convicted until later.
22. C also gave evidence. She said that she had in the past attended First-Aid classes with the wife of Roger. After about a year J had come with her and would sometimes talk to him at the classes. She said that, during the telephone conversation on 6 September, she had been in the room while her mother talked to J. C had spoken to J first, but after a while J asked to speak to the mother. She said she could hear most of what J said to her mother. Her mother had asked J who the First-Aid man was. C had said it was Roger G. The mother then said to J "I'll give you his first name. Roger." J had replied "That's the man". Cross-examined, C agreed that she had given evidence in support of her father at trial and that she was known as his 'right-hand' girl. Contrary to what the mother had said, C said that, at the time the call was made, both she and her mother knew that her father had been told there were no grounds of appeal. She said this had been put in writing by counsel. They had been told the only ground of appeal would be fresh evidence or, if J was to 'explain the truth' and say that it had not been her father but someone else. She accepted that the conversation with the mother had started with the mother telling J how the family was getting on, how the two other children, T and K, were settling in to their foster homes and that they were not happy. They could none of them come home because of the allegations which J had made. C said she could tell J was upset and could hear her crying. She said that her mother had never asked J to say that the father did not do it. However, she could hear J saying short words to the effect of "Yes", "That's him" and "I'll do that, mam". She said her mother had wanted J to explain everything to a social worker, so that a written note could be made of it which J would sign. She confirmed that the name "Roger" had come from her mother and not from J.
23. Stephanie Woodfine, a qualified social worker, gave evidence. She was the key worker for J and responsible for keeping a file in relation to her welfare. She had been informed of the telephone call of 6 September by the social worker present at the time and she went to see J on 12 September armed with the notes of the social worker which had been provided to her. Having spoken to J, she made notes of what J had said, immediately after the meeting. Those notes were embodied in a statement made later by Ms Woodfine for the care proceedings relating to J. That statement was placed before us by the agreement of both counsel as a record of what was said. The relevant part read as follows:

"J said she went quiet and her mum said to her 'It was Roger who raped you'. J said she later replied 'Yes'. I asked J how many people had she been raped by. J said "two, her dad had raped her and Roger". I discussed with J the conversation I had with her mother, stating J had told her it was not her dad but Roger. J said she never said that. J said her dad definitely raped her and she was not withdrawing this allegation.

I asked J if she was telling the truth in relation to Roger, as from reading through the transcript of Claudette [the social worker concerned] her mother had said J was about to tell them something very important. I'm the first person she's told tonight, however Claudette reported all J was heard saying was "Yes" and "No" and "I'll say it was Roger".

J said it was true. I asked J if she wanted to be video-interviewed regarding this. J said no as it brought back painful memories of when she was raped by her dad. J said she did not want to keep talking about it and wanted to forget. I let the subject drop and advised J I would give her time to think about her disclosure and if she wanted to pursue the matter arrange to see her within two weeks."

24. Ms Woodfine stated that, on 21 September 2001, she saw J again, this time with DC Gill Way. The purpose was to see if J wished to be video-interviewed about Roger and whether her allegation in respect of Roger should be taken any further. Again, Ms Woodfine made notes of the conversation and those notes are before us by agreement. DC Way asked who had brought 'Roger' up during the telephone conversation of 6 September and J replied it was her mother. These notes demonstrate a confused account by J of the conversation of 6 September. In relation to the suggestion that a man called Roger had raped her, J said that, once when she was eleven, someone had grabbed her and taken her to a house in Tirybreth. However, she said she had not been raped on that occasion. She made clear that a 'Roger' had never raped her and insisted that her father had. The notes conclude as follows:

"J said her mum had asked if Roger had raped her. J said she replied yes to this, as she felt pressurised from her mother to say it.

DC Gill Way asked "Have you been raped by a person called Roger?" J said "No".

DC Gill Way asked had she been raped during the incident when she went missing for two hours. J replied no.

DC Gill Way asked if any other person had raped her other than her father. J replied no.

DC Gill Way referred back to J's earlier disclosure as a result of the telephone conversation and why she had made that disclosure.

J replied that she wanted to please her mother and it was the pressure from her mother during the telephone conversation that she said she would say it was Roger. J said it was her mum who brought up the incident when she went missing for two hours.

J said it was her mother who told her to say it was the man named Roger who had raped her when she had gone missing for two hours. J stated she actually only knew one Roger and he would never do a thing like this."

25. Cross-examined, Ms Woodfine made clear that J had lived in Tirybreth before being taken into care and that Roger also lived there. He had been prosecuted for offences of indecency with children at around the time when J came into care. He was prosecuted on an indictment containing five counts charging indecent assaults. His trial took place in August 2000 and he was sentenced to 15 months' imprisonment. Ms Woodfine stated that, by the end of the meeting on 21 September, it was clear that J was not alleging that 'Roger' had raped her and she had not done so since.
26. X, who was aged 16, gave evidence as follows. She had first met J at a caravan site in Easter 1998 and had then lost touch. However, at the end of August or beginning of September 2000 J had started attending the same school as X. X said that J looked and dressed a lot older than her age. X said that a rumour was circulating round the school that J had been raped by X's step-father. X confronted J about the rumour but J denied that she had started it. J said "How could you believe that? After all that happened with my father, how can you say it? I didn't start the rumour." X, who had been told that J had so informed two of her best friends, did not accept J's denial. She said that J was being 'really horrible' and, in the face of her disbelief, said "Anyway, your father was a lousy fuck". X said that J had also told her that she had sex with three boys at school: H, E and F, also with three teachers and the son of J's foster parents. All these incidents were supposed to have happened since she had started at the school in September 2001. She also said that she was pregnant and having an abortion. X made clear that she did not believe any of it and that J became generally unpopular because she was regarded as an attention seeker. X said it was plain that J was having a difficult time and X did not take any of the allegations seriously.
27. We consider that, albeit the fresh evidence we have heard relates broadly to the credibility of J, a clear distinction falls to be drawn between (a) the allegation concerning 'Roger' which, if it is true or may be true, relates to a period covered by the charges faced by the appellant below and (b) the evidence of X which relates to a period post-conviction when J had been parted from her family and was, on any view, a very unhappy and disturbed schoolgirl in the throes of adolescence and recognisably 'attention seeking' among her schoolfriends in a manner in which it was never suggested she had behaved at trial.
28. As to (a), having heard the evidence of the mother and sister, even without the evidence of Ms Woodfine, we find ourselves quite unable to accept that J's allegation against 'Roger' was either volunteered (as opposed to prompted) during the telephone conversation of 6 September or that it was reliable in any way. We see no reason to doubt J's explanation given shortly afterwards to Ms Woodfine and DC Gill that the assertion that 'Roger' had raped J was given in response to pressure from the mother. Furthermore, we are satisfied that the reasons for such pressure are clear. Not only did the mother refuse to believe the allegations originally raised against the appellant and accepted by the jury, it is quite clear that (contrary to her denial) the conversation of 6 September took place (1) after she was aware that the appellant had no grounds for appeal unless J withdrew her allegations and (2) after she had learned of the recent conviction of Roger 'the First-Aid man' on charges of sexual assault (both of which she denied before us). (3) The allegation made against Roger was in response to pressure and J's consequent belief that she was responsible for the break-up of the family, such allegation being hastily withdrawn thereafter. We do not find the evidence from the mother and C worthy of credit in relation to the circumstances in which the allegation was made; nor do we think that, in these circumstances, it would have carried weight with any reasonable jury as going to the merits of the allegation against the appellant.
29. As to the evidence of X, we find it unsurprising that, removed from home, following her experiences and the trauma of a trial, disturbed by everything which had happened and attending a new school far from her previous home friends, J engaged in the kind of attention-seeking behaviour and patently fanciful boasting which X described and recognised as such. The nature and quality of J's later assertions on these later occasions were a world away from her allegations made almost a year earlier concerning her father's behaviour towards her over a sustained period of two years ending in October 1999. In our view, had this evidence been available prior to trial, it is unlikely that it would have had any effect upon the trial, given that counsel had considered and advised upon the undesirability of calling evidence of this type in the light of the possible result that the appellant's previous conviction for incest in August 1982 would be admitted in evidence. The evidence now sought to be relied on, is classically of a kind which the court should be wary of admitting, given that it is evidence of a type which there was a considered decision should not be called at trial. To admit it later upon the basis of a contrary view taken by solicitors and counsel not involved in the trial inevitably involves the court in permitting an appellant 'a second bite of the cherry' in respect of an earlier decision to conduct the trial upon a basis which was reasonable at the time but, with the benefit of hindsight, is sought to be reversed.
30. We consider that, had this evidence been available at trial, it is most unlikely that it would have been used. Having heard it de bene esse, we do not in the event consider that it is evidence which would or should have led to a different result. Having received and considered all the evidence adduced before us, we do not consider that it affects the safety of the original conviction and the appeal will therefore be dismissed.