England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WARRINGTON
His Honour Judge D. Hughes
T20040179

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th April 2005

Lord Justice Hooper :

1. At the conclusion of the hearing on 22 March 2005, we announced our decision dismissing the appeal. We now give our reasons.
2. On 9 December 2004 in the Crown Court at Warrington before His Honour Judge Hughes and a jury the appellant, now aged 42, was convicted of the indecent assault of C, aged 14. He appeals his conviction by leave of Curtis J. It is submitted that the conviction is unsafe by reason of fresh evidence. There is no dispute that the fresh evidence relates to events which occurred after the date of the conviction and that the only issue which we have to address is whether the evidence, in so far as it contradicts the evidence of C before us, is capable of belief.
3. It is not necessary to set out the facts of the case in any detail. C gave evidence that in September of 2003, she went to the house of a friend of hers K. K was not in. C said that the appellant. K's father, indecently touched her inside her bra, tried to kiss her and put his hand down her pants. C made no complaint until she spoke to a careers adviser at her school in the following May. She asked the advisor whether she could tell her something that she wanted to keep secret. There was no supporting evidence for C's account. The appellant gave evidence and, as in his police interviews, denied the offence.
4. The fresh evidence relates to an incident about which there is, in some measure, no dispute. On the Saturday before Christmas 2004, less than two weeks after the conviction, C was standing outside a chip shop waiting, so she said, for a friend to finish working there. Close to the chip shop was a group of some 15 – 18 teenagers. The four witnesses who gave evidence on behalf of the appellant said that they were part of that group. They ranged in age from 15 to 17. They were A, T, both female, and J and D, both male. All four were friends of the appellant and his family. It is clear that all four were of the opinion that the appellant was innocent of the indecent assault for which he had only recently been convicted. In their view, C had lied when she gave evidence alleging the assault. A and J believed that C had made false allegations against A's brother. They all accepted in cross-examination that not only were they not friends with C but that they did not share secrets with her.
5. After the application for leave to appeal, C was interviewed and her interview recorded on video. She agreed to give oral evidence before us and she did so behind a screen so that she could not see the appellant. She appeared to be genuinely distressed by the strain of giving evidence again.
6. Although she gave evidence last, it will be easier if we set out her evidence as foreshadowed in the video interview. Apart from one alleged discrepancy relating to her having had a quarrel with K, there was no suggested inconsistency between what she said to us and what she had said in that interview.
7. C described a history of having been bullied because she had given evidence against the appellant. She said that on New Years Eve 2004 the windows in her house were broken.
8. As to the incident outside the chip shop, she accepts that the witnesses that were called by the appellant were there with the exception of D. She said that he was not there.
9. She said that A came across and said to her that she was "tight for getting Dave done for rape". C said that she had replied "she had not got him done for rape". She denied ever saying that the appellant had not touched her, nor did she say that he had not done anything. She denied saying anything about giving a false story because she had been bullied. She did not mention the name of JB. She knew JB but she was not a friend. She did not mention the name of K. She said that A said that "if you don't drop the charges I will kill you" and that J, A's boyfriend, said "you can't accuse people of rape". She said that T came half way through the argument and was the first one to leave. C described A as drunk. She said, in cross-examination, that she only started crying after A had had a go at her.
10. We should add that the false rumour that the appellant had attempted to rape C had certainly been circulating within the community although for how long is not clear. A confirmed this and so did the appellant when he gave evidence at the trial. At the trial he described hearing a rumour around Christmas 2003 that he had attempted to rape C and that he had banned her from the house. The prosecution challenged this. It was inconsistent with the evidence of C at the trial (and before us) and the appellant had not mentioned it to the police in interview.
11. A, aged 15, described in evidence seeing C crying and went over to say "what's up?". A said, after some hesitation, that C had replied "Dave never raped me". A accepted that she had been drinking vodka but denied that she was drunk. A said that C said that she had "got bullied" into saying that she had been raped. In cross-examination she gave this version of events. She said to C "what's up?", to which C replied "he never raped me". A then said "you're tight for getting Dave done for rape". Her boyfriend then joined in saying she could not go around accusing people of rape. A denied threatening C.
12. If that was all the evidence in the case then our task would be easy. A would have been confirming C's evidence that she only denied that the appellant had raped her. Although C denies making any reference to bullying, it would not necessarily undermine C's evidence if she had, in fact, said something about bullying, given her evidence about bullying.
13. A's boyfriend, J, said that A and he had walked over. The two girls spoke and then A said "tell him what you have just said". C then said that "David didn't do anything", a different account to that given by C and A. According to J, C said that JB had bullied her into saying it. He then said that he had heard nothing else.
14. In cross-examination he gave a different account of the start of the incident. He described A and T walking over and he coming over in the group after that. In his statement provided to us (which he signed on the morning of the appeal), he gave a different account. He described C as crying outside the chip shop and T as standing with her. He said he asked A to go and speak with C. He said he saw A speaking to C and the next thing that happened was C was saying that she had been bullied into making the allegations against the appellant. Although that inconsistent statement was not put to him, it is something that we can take into account. It shows not necessarily that he is lying but that there is confusion in his mind as to precisely what happened.
15. We turn to the evidence of T, aged 16. Immediately after the incident, on the evidence of the appellant's wife which was read, T came and saw her and said that C had admitted that she had made up the allegation "as pay back to my daughter K with whom she had had an argument and fall out". That led to the involvement of the appellant's solicitor's who took a statement from T and then later took statements from others who were present.
16. T described C as crying and said that she went over to see what was wrong with her. T said "what's up with you?" to which C replied "he didn't do it". T then said "who didn't do it?" to which C replied "Dave didn't touch me". She said she could remember no further conversation. T said that C said that she had been bullied into saying what she had said against the appellant by JB. That was a different account from the account that T had given in her statement and to the appellant's wife. We permitted her to refresh her memory from her statement. The passage in the statement which she then adopted said that she had made it up to get back at her friend K, because they had "fell out". We find this change in her evidence noteworthy. It is also noteworthy that J speaks of C saying that JB had bullied her and that T says this in evidence although not in her statement. That does suggest that this matter has been discussed with the consequential risks.
17. In cross-examination she accepted that A and her boyfriend J had gone across first. It was put to her that the reason that C was upset and crying was because A was shouting at her and had told her to drop the charges and threatened to kill her. T denied this. She specifically denied that the words used by C were "he never raped me". She emphatically denied that she was lying.
18. T's account does not fit with the account given by A, whom she accepted went over first with J and who, on A's account, asked C "what's up?".
19. We turn to the evidence of D, aged 17. He said that he heard C crying and turned around and saw C with T. He heard T say "what's up?" to which C replied "he didn't do it". T then asked "who?" and C said "he didn't touch me up or anything". They all then went away. In cross-examination he said that no one was shouting at C. More than once D said that he did not believe that the appellant had sexually assaulted C, indeed he said that sometimes in answer to questions which did not invite that response. He did not hear the word "rape" used. According to his recently signed statement he saw T standing with C who was crying and T saying "who didn't do what?" to which C replied "Dave didn't do it to me", a more minimalist account than the one given in evidence.
20. Although Mr Rowlands, for the respondent, put it to some of the witnesses called on behalf of the appellant that they were lying, it is not necessary for us to reach a conclusion about that. There is ample scope here for confusion and misunderstanding. Mr Rowlands in his submissions made the following strong point, which we accept. The account given by the witnesses of C crying before anything was said to her just is incredible. The inference from the evidence given on behalf of the appellant is that about two weeks after giving evidence she is so distraught by what she has done that she is spontaneously crying. We do not accept that. We are quite satisfied that she was crying because of the behaviour of those who came and spoke to her. We are quite satisfied that things were said to her of a threatening nature and it is not surprising that she cried giving what was being said and the number of people around her. Given the strength of the views of those witnesses called on behalf of the appellant that C had given false evidence against the appellant and indeed had made up an allegation against someone else, we do not believe that this was a civilised conversation of the kind which the appellant's witnesses describe.
21. Mr Rowlands also asks rhetorically why would C suddenly admit that she had made up the allegation against the appellant? We accept C's account that she was saying no more than that the appellant had not raped her. We have no doubt that this conversation started between A and C and that in that conversation as A and C confirm what was being denied by C was that the appellant had raped her. Thereafter, in all the confusion, it may well be that T and the others thought that she was denying any touching.
22. We are quite satisfied that C did not admit that she had made a false allegation against the appellant. The evidence called on behalf of the appellant in this respect is not capable of belief and we dismiss the appeal.