England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PORTSMOUTH CROWN COURT
(HHJ HUGHES QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 November 2003

Lord Justice Potter:

1. On 28 February 2003 in the Crown Court at Portsmouth before His Honour Judge Hughes QC and a jury, the appellant was convicted and sentenced on four counts of indecent assault, Counts 1-3 related to an 11 year-old girl, T, and Count 4 to her mother, P. The appellant was sentenced to 2 years' imprisonment on Counts 1-3, such sentences to run concurrently and to 1 year's imprisonment on Count 4, such sentence to run consecutively to the 2 years imposed on Counts 1-3. Thus he was sentenced to a total of 3 years' imprisonment. He was also recommended for deportation on completion of his sentence. He appeals against conviction and sentence by leave of the single judge.
2. The appellant, who is a Kurdish national, was living in shared local authority accommodation. T and her mother, together with her father, occupied a bedroom in the house. It was the prosecution case that on two occasions on the same day, one occasion shortly following the other, the appellant had touched T's breasts and vagina over her clothing and that, on the first occasion, he had pressed his groin against her from behind. It was also alleged that on a further occasion next day, he behaved in a similar fashion. A few days later, he had touched P on her breasts and pulled her towards him. Each of the occasions mentioned was reflected in an individual count of the indictment. It was the defence case that the allegations had been invented by T and P. There had been no indecent assault by the appellant on either of them and he had not touched any of their intimate areas.
3. In relation to Counts 1-3, T gave evidence via a video-taped interview and television link. She said she had been sitting in the lounge and the appellant had come in and asked her to read him a story. She read him a story and he went out to the shops and bought her a small tin of 'Pringles' biscuits. He came back and grabbed her and started touching her. He touched her breasts with one hand and rubbed her vagina with his other hand over her clothing while "humping" her [i.e. repeatedly pressing his groin against her] from behind. (Count 1)
4. She said that the appellant then went to his room and, when he came back, was wearing red and white boxer shorts and a white top and he had his penis hanging out of his boxer shorts. Eventually he looked down and said "Oh my God" and then went to put on his jeans. T then ran upstairs to her mother. The appellant ran after her and touched her again on her breasts and vagina when she was halfway up the stairs. (Count 2) There was evidence that T subsequently identified the boxer shorts to the police.
5. She said that, next day, when she was in the upstairs passageway, the appellant had started touching her breasts and vagina again and pressing his groin against her. She kept on telling him to stop it and saying that she did not like it. (Count 3)
6. Thus T stated that there were three places within the house in which indecent assaults occurred: in the lounge (Count 1), on the stairs (Count 2) and the next day in the communal upstairs passageway (Count 3).
7. In cross-examination T was asked if she had seen the appellant (in innocent circumstances) in boxer shorts outside his room. She said "No". She said "When he looked down and said "Oh, my God" it was as if he did not want me to see his man parts either. Perhaps they fell out of his boxer shorts". She denied that there was any occasion, as put to her in cross-examination, when the appellant gave her a hug in the presence of her mother.
8. So far as Count 4 was concerned, P, T's mother, gave evidence that they had moved to the address in question at the end of July 2002. She said that after about three weeks T spoke to her in the bathroom about the appellant having touched her in inappropriate places. She took T to their room and they spoke to T's father. After that they tried to avoid the appellant. P did not confront the appellant but told a friend who spoke Kurdish to talk to him. About two days after her conversation with T, P heard the appellant calling for T down in the passage and went to see what he wanted. He asked if T was all right because he had not seen her. P said "She's fine" and, when she turned round, the appellant grabbed her from behind, put both his hands on her breasts and pulled her towards him. She told him to "Fuck off" and went back into her room.
9. At this point it is to be noted that, whereas the prosecution were aware from P's statement to the police that T had complained in detail to P of her alleged assaults soon after they occurred, the Crown did not seek to rely upon that evidence by way of 'recent complaint' as part of the prosecution case. Whereas its timing was of a nature which would have enabled it to be so presented, the prosecution was prepared to accept that it could not be relied on for that purpose because there were a number of inconsistencies in it. Counsel for the defence then cross-examined to elicit some inconsistencies in aid of the defence.
10. In cross-examination in respect of the offences concerning T, P stated that T had told her that the incidents occurred in three places: the appellant's room, the kitchen and the passageway. She did not say that any incident had occurred in the lounge or on the stairs. She also said "[T] said that [T] had told her that "it had happened a lot of times and not just on two occasions on one day and on one occasion on a subsequent day". Thus so far as T's evidence was concerned, there was now before the jury evidence from her mother that, when complaining to her, T made statements as to the alleged assaults which were in those respects inconsistent with her own evidence to the jury.
11. So far as the offence against P was concerned, she said it would be wrong to say that she was touched by the appellant on the same day that T had spoken to her. When pressed she said "Well, I'm not too sure. When I made the statement to the police on 4 September I did say it was the same day". P denied the suggestion put to her that she had invented a similar incident in her case in order to bolster the allegations of T. She said there was an occasion when the appellant gave her and T some sweets and clothes. T had given him a hug but he did not kiss her on the forehead as suggested.
12. In the light of the inconsistencies which had been opened up, quite properly, by the defence in relation to the evidence of T, prosecuting counsel sought to re-examine P as to the terms of T's complaint in order to emphasise or establish that such complaint was in other respects consistent with the account T had given to the jury. Counsel asked:

"What was your understanding, from what [T] said, had happened?"

13. At this point defence counsel made an objection which was dealt with in the absence of the jury. We shall turn to the substance of the argument which followed below. However, the judge ruled in favour of the prosecution and, upon the return of the jury, the following further evidence was given in re-examination.

"Q…I was about to ask you that you have been asked questions about how many times [T] had said things had happened and where. And I was asking you what in fact she had said to you had happened. Can you tell the court, please?

A When I was in the bathroom with her, she was sitting on the floor crying, I said to her she must tell me exactly happened to her … She told me that Ali touched her in her private parts and on her vagina and …

A Can I stop you there? What I want you to do is to tell the jury exactly, not paraphrasing, but from your recollection exactly what [T] said with the words that [T] asked. Alright? It is very important that you … if you cannot remember then say you cannot remember.

A Alright.

Q But do not paraphrase or say something which you interpreted. Say what she said.

A Okay. She told me that he touched her boobs and he touched her flower and that he was standing behind her and he pulled her towards her [sic] and was humping her from the back … That's all I can remember at this stage."

14. The appellant gave evidence in his own defence. He said that he first met T's family when asked by the landlord's agent to help them by showing them their rooms when they arrived and helping them with their luggage. After that he used to see them from time to time. He did not see T without her mother and father and he never put his hands on T or her mother. When they first arrived he gave the family t-shirts, biscuits, some sweets and some slippers. He intended to help them and he had noticed that they had got nothing. They came and collected the items to take them upstairs. T hugged him and he kissed her on the forehead. He did not put his arms on her. He said he wore his boxer shorts when he went to the bathroom and T may have seen him when the door of his room was open or perhaps when he put his clothes on the bed when his door was open. He never showed T his private parts and he never talked to her – his English was not good enough. She only said "Thank you very much" to him for the gifts. He provided gifts for the family twice, but he could not remember the date of the second time. He did not go out and buy T a small tin of 'Pringles' as alleged and he did not ask her to read him a book.
15. In passing sentence following the appellant's conviction, the judge observed that the offences involved were "serious offences of indecent assault". He said that the courts had an important public duty to deter men from molesting children and that duty could only be discharged by passing severe sentences. He was satisfied that this was a proper case for a recommendation to be made by him to the Secretary of State for the appellant's deportation. His reasons were that this was not an isolated act but a series of serious indecent assaults and that the appellant's victims were an 11 year-old child and her mother.
16. The grounds of appeal are based on the ruling of the judge that the prosecution were entitled to re-examine T's mother to demonstrate the degree of consistency as well as the inconsistencies in T's complaint to her mother, defence counsel having cross-examined as he did, despite the strictures of this court against the legitimacy of such a course in R v Beattie [1989] 89 Cr App R 302 and the summary of the law and the authorities in Archbold 2003 at paras 8-102 to 8-110 the text of which was considered by the judge.
17. The judge said:

"Mr Mousley was perfectly entitled to cross-examine [P] to establish the inconsistencies that there were in the complaint that had been made by T. If I misapply the analogy given by Mr Justice Turner, what Mr Mousley was able to do, and, I emphasise, perfectly properly, was extract the duff and spread it out before the jury.

The prosecution now apply – and this application is opposed by Mr Mousley – to have my leave to re-examine [P] on the rest of the complaint that was made by [T] to her mother. The rest of the detail of the complaint is, of course, broadly speaking wholly consistent with the evidence that she gave. And again, misapplying the words of Mr Justice Turner, the prosecution therefore seek to put the plums on top of the duff so that the jury see the full picture.

Mr Mousley makes a number of objections. The most forceful he makes … is that this re-examination is simply inadmissible in law. However, the fact of the matter is that the terms of the recent complaint were introduced in evidence by his own cross-examination.

…

Recent complaint is recognised as an exception to the general rule of evidence that prohibits evidence of previous consistent statements being adduced in evidence before the court. Part of the recent complaint having been adduced, I am quite satisfied that it is necessary, in the interests of justice and fairness to both parties, to allow the jury to form their own view on the reliability and consistency of [T] as a witness by considering the whole of the complaint that she made to her mother.

The case of R v Riley (1866) 4 F&F 964, although not directly on the point, has an analysis which I would pray in aid. It is the words of Baron Channell. He describes the workings of the Criminal Procedure Act 1865 and he indicates that, once the whole of the deposition is before the jury, and I quote:

… it will appear how far the suggested contradiction exists, and the absence of a particular statement may be explained by the context; or even if there is a discrepancy on the point, it may appear that it is only one minute point, and that in all the rest of the evidence there is perfect consistency, so that the general result of the comparison may be confirmation rather than contradiction.

As I say, Baron Channell was talking about the operation of the Criminal Procedure Act. There is no suggestion that any deposition or witness statement should go before the jury in this case. The application is strictly limited to questions in re-examination. But, for the reasons that Baron Channell indicated, namely that it will allow the jury to see the whole picture, will allow them to see the contradictions in context, and allow them to give what weight the jury think fit to the contradictions, I am firmly of the view that it is appropriate that this re-examination should be allowed. If it were not to be allowed, the jury would only see the duff; they would not know about any plums, and the jury could not be invited to speculate about what else was in the terms of the complaint."

18. The grounds of appeal complain that the judge erred in allowing the prosecution to re-examine P as to the complaint made by the daughter to demonstrate that there were also consistencies, in order that "a balanced picture was given". It is said that the complaint did not fall into one of the three categories of exception available to render a previous consistent statement made by a witness admissible. It is said that the judge erred in not applying the law as laid down in Beattie, the words of Channell B in Riley not being applicable to the situation which arose in the instant trial. It is said that the case for the prosecution on Counts 1-3 rested entirely on the evidence of T and, there being no other supporting evidence, her credibility was crucial. Thus, by wrongly allowing the introduction of a previous consistent statement to bolster her credibility, the convictions on those counts were unsafe. Finally, although it is acknowledged that the remaining count relating to P had no obvious evidential overlap with Counts 1-3, and that the judge properly directed the jury to consider it separately, the 'knock-on' effect of P's evidence of T's complaint would not merely have been to bolster T's evidence, but also the case in respect of P.
19. So far as the appeal against sentence is concerned it is said that, having regard to the nature and number of the assaults and the absence of any breach of trust, the sentences imposed were manifestly excessive and out of line with previous decisions of this court.
20. In our view the position on the law is as stated in Archbold at para 8-102. There is a well-settled

"general rule of evidence that statements may be used against a witness as admissions but that you are not entitled to give evidence of statements on other occasions by the witness in confirmation of the testimony":

see Jones v S E and Chatham Railway (1918) 87 LJ KB 775 at 779. This is sometimes described as the general rule against previous consistent or self-serving statements and sometimes as the rule against narrative. It operates as a general rule, subject to three well-known exceptions, to prevent a witness being asked about a previous oral or written statement made by him and consistent with his evidence: see R v Roberts 28 Cr App R 102; R v Larkin [1943] 29 Cr App R 18 and R v Oyesiku (1971) 56 Cr App R 240 at 245-7. Similarly, evidence of the previous statement may not be given by any other witness: see Roberts supra.

21. The general rule applies in examination in chief, cross-examination and re-examination:

"The evidence of a witness cannot be corroborated by proving statements to the same effect previously made by him; nor will the fact that his testimony is impeached in cross-examination render such evidence admissible. Even if the impeachment takes the form of showing a contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion."

See R v Coll (1889) 25 LR Ir 522 per Holmes J at 541, as approved in Oyesiku at 245. See also R v Weekes [1988] Crim LR 244 and R v P (GR) [1998] Crim LR 663 and the commentaries thereto.

22. The three well-known exceptions to this general rule as stated in Archbold, Blackstone's Criminal Practice and other textbooks are recent complaints in sexual cases, statements forming part of the res gestae and statements rebutting an allegation of recent fabrication as identified in the case of Beattie. In that case, (at 307) Lane CJ clearly stated that "There is no general further fourth exception to the effect that where counsel cross-examined to show inconsistencies, the witness can be re-examined to show consistency".
23. We add for completeness that, in addition to the three well-known exceptions identified in Beattie, there are three further exceptions which are generally recognised in practice, namely statements made by an accused upon arrest; statements made by an accused by way of explanation when found in possession of recently stolen goods or upon recovery of other incriminating articles; and the statements of witnesses made by way of identification of an accused outside court, all of which are admissible to demonstrate consistency with an account given in court.
24. In this case, it seems clear that none of the three exceptions identified in Beattie applied. It was not contended for the prosecution that it was necessary to elicit those parts of T's complaint to her mother as were consistent with her evidence in court in order to rebut an allegation of recent fabrication (as for instance in the case of Oyesiku). Such suggestion had not been made. In that connection, we observe that it is not necessary for such an allegation to be made expressly in order to let in rebutting evidence. It is for the judge to assess whether the challenge made in the course of the cross-examination amounts to or might be taken by the jury as an allegation of recent fabrication. The position in this regard is set out in the Australian case of Nominal Defendant v Clements (1961) 104 CLR 476 per Dixon CJ at 479, as quoted in Oyesiku at p.246):

"The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party, but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course."

25. This was not such a case. At trial, the fact of T's complaint to P had been dealt with in T's evidence in chief by a formula agreed by counsel in recognition of the fact that, in the light of the inconsistencies, it would not be used by the prosecution as proof of consistency on T's part. The solution adopted was that P simply agreed with a leading question put by prosecuting counsel that, in the bathroom, T had spoken to her about the appellant "touching her in inappropriate places". In cross-examination, defence counsel had not challenged or sought to go behind that description, save to put to P that, when T had so complained, she had stated that the incidents occurred on more occasions and in places other than T had testified.
26. From the transcript of the argument which is before us, it appears that the judge took the view that the observations of Channell B which he quoted justified his ruling. However, in our view they did not do so. The passage quoted was concerned with the appropriate procedure to be followed in relation to cross-examination of witnesses as to previous statements in writing. In Beattie, a question arose in relation to the written statement of a witness which, following challenge on the question of consistency, the judge allowed to be exhibited and copied for the jury. The court held that, although it was open to the judge under s.5 of the 1865 Act to allow the whole of the statement to go before the jury, in the view of the court he would have been well advised to confine that portion of the statement shown to the jury to the two matters the subject of cross-examination.
27. In this case, the inconsistencies elicited as contradictions of the evidence of T were not denied by her mother in cross-examination and the situation which it was the purpose of s.5 to alleviate simply did not arise.
28. It has correctly been observed, e.g. in the commentary upon Weekes in the Criminal Law Review, that

"On occasion, a strict application of the general rule excluding previous consistent statements may generate the appearance of unfairness in that the court is left with an unbalanced view of the overall consistency of the witness." (1988 Crim LR 245)

29. Again, in the commentary upon R v P (GR) at 1998 Crim LR 664, it is stated that:

"It might be thought a failing of the rules of evidence that an attack on a witness based on the making of an earlier inconsistent statement cannot be met by demonstrating in re-examination that on balance the witness's previous statements show a high level of consistency. Instead, the cross-examiner has a relatively free hand in the use of inconsistent statements (subject to the provisions of sections 4 and 5 of the Criminal Procedure Act 1865, of which more later) while the party calling the witness can only rely on previous consistency if the case falls within one of the three exceptions to the rule against the use of consistent statements … The overall effect is that a jury, given the information which the rules permit them to have, may be left with a wholly unbalanced picture of the witness's previous statements. This may be a particular disaster where the witness is a child and the jury may be over-persuaded by inconsistencies which may seem significant to an adult, but which do not necessarily indicate lack of veracity in a child …

That having been said, it is not the intention of the Law Commission materially to alter the imbalance between these rules, so for the time being we must, it seems, put up with them (Report No. 245, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997))"

30. We cannot but agree with those observations. They are a recognition rather than a contradiction of the position as stated in Beattie that there is no general further fourth exception to the effect that, when counsel has cross-examined to show inconsistencies in the testimony of a witness, the witness can be re-examined to show consistency by reference to a previous statement.
31. That said, however, we would emphasise that in Beattie the court referred to absence of a general further exception. No doubt the matter was put in that way because we do not consider that in that case the court intended to detract from the existence of a residual discretion in the judge to permit re-examination to show consistency when there is "something either in the nature of the inconsistent statement, or in the use made of it by the cross-examiner, to enable such evidence to given" (see Oyesiku at 245 as already quoted).
32. It is this residual discretion, necessary in the interests of justice, which permits, and indeed requires, close examination of the position in relation to a suggestion of recent fabrication, as well as the need in all cases to ensure that, as a result of a question put in cross-examination, the jury is not positively misled as to the existence of some fact or the terms of an earlier statement. If, as a result of cross-examination, that is the situation which faces the judge, then, to the extent that it is necessary, he will be justified in his discretion in permitting questions in re-examination and/or use of s.5 of the 1865 Act where applicable, in order to correct the position.
33. In our view, no such correction was required in this case. The fact that T had made a complaint to P, dealt with by the formula we have mentioned, was not sought to be challenged by the defence. Counsel for the defence simply sought to establish inconsistencies on the part of T which were admitted to exist and which were not unfairly or inaccurately extracted from P. In seeking in re-examination to adduce evidence of the precise terms of the complaint, prosecuting counsel was seeking not to correct an evidential position which would otherwise be erroneous or misleading, but to add to the evidence in order to establish the consistency of T's complaint with her testimony in a manner prohibited by the general rule and not within a recognised exception. We therefore consider that the judge was in error in ruling as he did.
34. That said, however, we do not consider that the convictions were thereby rendered unsafe. The judge directed the jury emphatically to the effect that the complaint made was not evidence, let alone independent evidence, of what actually happened and he highlighted the inconsistencies relied on by the defence. He also directed the jury that the charges must be considered separately. It is plain from the conviction on Count 4 that the jury accepted the evidence of the mother as to the indecent assault upon her, roundly rejecting the suggestion that she was complaining herself in order to bolster the complaints of her daughter. The manner of the assault described by P was almost precisely the same as that which T described in respect of Count 1. The jury reached a unanimous verdict in respect of Counts 1 and 4 upon the indictment following their retirement and provided a note to that effect. The verdicts were then taken on Counts 1 and 4. After further consideration, the jury were given a majority direction and speedily supplied a note to the effect that

"We have given the two indictments [i.e. counts] due consideration and the majority has not changed and is not likely to change. Current Count 11:1 on both indictments."

35. Verdicts of guilty by a majority of 11:1 were then returned. Having carefully considered the matter we consider that the convictions are safe and the appeal against conviction is therefore dismissed.
36. So far as the appeal against sentence is concerned, we have been referred to four authorities: Lennon [1999] 1 Cr App R (S) 19, L [1999] 1 Cr App R (S) 347, Attorney General's Reference No 43 of 1999 (Glyn GM) [2000] 1 Cr App R (S) 398 and Attorney General's Reference No 72 of 1999 (MG) [2000] 2 Cr App R (S) 79. All involved indecent assaults of a substantially more serious character than those in this case and involved persons in positions of trust. The closest to being comparable is the case of Glyn GM which involved somewhat more serious offences by a father upon his daughter. It was stated that, upon conviction on a plea of not guilty, the appropriate sentence would have been one of between 15 and 18 months' imprisonment. It seems clear to us that, in the present case, the sentences imposed were manifestly excessive. We consider that the appropriate sentence on Counts 1 – 3 would have been concurrent terms of 15 months in respect of T and on Count 4 a consecutive term of 3 months in respect of P, i.e. 18 months imprisonment in all.
37. Accordingly, we quash the sentences imposed on each of the counts and substitute upon Counts 1-3 sentences of 15 months in each case, such sentences to run concurrently, and upon Count 4 a sentence of 3 months' imprisonment to run consecutively to Counts 1-3. To that extent the appeal against sentence is successful.