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 CARDIFF
His Honour Judge Gerald Price QC
T20080920

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/07/2009

The Hon. Mrs Justice Swift DBE :

1. It is an offence under the Sexual Offences (Amendment) Act 1992 to publish the name and address of the victim, or any matter which might lead to the identification of the victim, of any sexual offence listed in section 2 of the Act.
2. On 10 December 2008, at Cardiff Crown Court, before His Honour Judge Gerald Price QC and a jury, the appellant was convicted (by a majority of 11:1 in respect of counts 1 and 5 and by a majority of 10:2 on all other counts) of five counts of indecent assault (counts 1, 2, 5, 6 and 8) and three counts of inciting a child to commit an act of gross indecency (counts 3, 4 and 7). On 29 January 2009, he was sentenced to a total of five years' imprisonment. He appealed against conviction and sentence with the leave of the single judge, who granted the necessary extension of time and adjourned to the Full Court the appellant's application for leave to adduce evidence from two witnesses who were not called at trial. Following the hearing of the appeal, we granted the appellant's application for leave and allowed the appeal against conviction. We indicated that we would give our reasons for doing so in a reserved judgment.
3. Counts 1-7 related to KN, the daughter of a cousin and close friend of the appellant's wife, Carol Pepperell. KN was born on 23 March 1980. KN's mother and Carol Pepperell were brought up together. The appellant and his wife have three children, Richard, Sarah and Simon. The two families lived near each other and, in the 1980s and 1990s, were very close. Although Sarah Pepperell was four years younger than KN, the two were friendly and, from the age of six or seven years, KN would stay overnight at the Pepperells' home from time to time. Sarah shared a bedroom with her brother, Richard. She occupied the bottom of two bunk beds and KN's evidence was that, when she stayed, she would share Sarah's bed, with Richard in the top bunk. After 1989, Richard moved into another room.
4. KN alleged that, when the girls were in bed, the appellant would go into their bedroom. On the pretence of tucking her into bed and telling her bedtime stories, he would indecently assault her and induce her to perform indecent acts on him. Count 1 of the indictment alleged that, on one occasion, whilst telling her the story of "Goldilocks and the Three Bears", he rubbed her chest. Count 2 alleged another similar occasion when he touched her vagina and Count 3 yet another occasion when he persuaded her to kiss his erect penis. Count 4 alleged an occasion when he made her stroke his penis. KN's evidence was that this behaviour was repeated on many occasions when she was staying overnight at the appellant's home. Count 5 reflected the fact that, on a number of occasions other than that identified in Count 1, the appellant had touched KN's breasts. Counts 6 and 7 concerned occasions other than those alleged in Count 2, 3 and 4 when he had, respectively, touched her vagina and made her lick or touch his penis.
5. KN could not specify the exact date of any particular incident. All she could say was that the behaviour began before Richard Pepperell moved bedrooms in 1989 and continued until she began to menstruate when she was 11 or 12 years old. She made no complaint about the appellant's conduct to anyone at that time.
6. KN said that, on a couple of occasions when the appellant was assaulting her, she saw the appellant's mother watching. She said that Sarah Pepperell was sometimes asleep when the appellant was touching her. On other occasions, the appellant's hand would move from her to Sarah and Sarah would giggle and sometimes fell asleep while the appellant was touching her. She said that that would have been when Sarah was four or five years old and she was aged eight or nine.
7. KN also alleged that incidents had occurred when she was in the bath and the appellant was present and that she had been forced to simulate sexual acts on a toy kangaroo and a doll that said "Mama" when it was turned over. She remembered that there was a "clown clock" that was always in Sarah's bedroom when the appellant was touching her. She said that she and Richard Pepperell, who was the same age as her, had had some sexual contact as children. That did not involve the appellant.
8. KN had made allegations of sexual assault against another man in 1995. Those allegations had been reported to the police and Social Services but had not resulted in any proceedings. She had not told anyone about the appellant's behaviour at that time because she was fearful of the effect on her parents. She had confided in her mother in 2001 or 2002. She had eventually confronted the appellant with her allegations on New Year's Eve 2005. She reported the allegations to the police the following day.
9. The prosecution also relied on evidence from KN's brother and mother to the effect that the appellant had frequently behaved in an inappropriately familiar and sexualised way towards the children (both girls and boys), including KN and Sarah Pepperell, especially when he had been drinking. It was the prosecution's case that this behaviour was a prelude to the appellant's more serious sexual misconduct.
10. Count 8 of the indictment related to NM, who was born on 5 August 1984 and was the daughter of a friend of the appellant, and a contemporary and close friend of Sarah Pepperell. She alleged that, on a day between 5 August 1997 and 5 August 1998, when she was 13 years old, she was helping the appellant to run the tuck shop for the local football club. She said that, whilst she was standing near the serving hatch of the shop, the appellant put his hand between her legs and rubbed her vagina for some minutes. He stopped when Sarah Pepperell came up. She did not tell anyone about what had happened at the time. She told her mother a couple of months later. She reported the incident to the police in May 2006.
11. NM's mother said that, when her daughter was 13 years old, she had told her that she had been pushed against a wall and that the appellant had placed his hand between her legs. (That was rather different from NM's account of events to the court.) She also suggested in evidence that her daughter had been "raped" but conceded in cross-examination that this was an exaggeration.
12. The defence case was that the appellant had not committed any of the offences alleged; both complainants were lying. The appellant, who was almost 76 years old at the time of the trial and was a man of good character, gave evidence. He agreed that KN would sometimes stay at his home at weekends and would share Sarah's bedroom. He said that there were occasions when his wife was out of the house and he would run the bath for the children. He would not be present during their bath. It was not his habit to go into the children's room to say goodnight or to tell them stories. He denied touching KN or Sarah Pepperell inappropriately. He said that the clown clock had been in the bedroom for less than a week as Sarah Pepperell had been scared of it. The children had never had a kangaroo toy or a doll that said, "Mama."
13. The appellant said that he remembered being at the tuck shop with NM and Sarah. He had not touched NM as she had alleged. There would have been up to 30 people milling around and walking past the hatch and anyone walking past would have been able to see through the hatch.
14. The appellant's wife gave evidence on his behalf. She told the jury that she had not witnessed any inappropriate behaviour. She had generally got the children to bed. She would tell them stories; the appellant never did this. The clown clock had been in the children's bedroom for only a few days. She could not remember the family owning the toys described by KN.
15. The court also heard evidence from the appellant's adult children, Sarah and Richard Pepperell. Sarah Pepperell could remember KN staying overnight on only five occasions, all after Richard had moved rooms in 1989. The appellant did not tell them stories. He had never touched her inappropriately and had never touched KN whilst they shared a bed. She said that she would have known about it if it had happened. She could not remember the family owning the toys described by KN. The clown clock had been in her bedroom for only one night.
16. Richard Pepperell gave a statement to the police on 31 July 2007. This was not supportive of the prosecution case and he was not called as a prosecution witness. He gave evidence on the appellant's behalf. He said that he had not witnessed any inappropriate behaviour on the part of the appellant. The appellant did not tell the children bedtime stories. He denied that there had ever been any sexual activity between him and KN. He could not remember the family owning the toys she had described.
17. The appellant's mother had died in 1989 and was not available to give evidence.
18. A number of grounds of appeal were originally advanced on the appellant's behalf. For the purposes of this judgment, it is necessary only to deal in detail with the ground relating to fresh evidence.
19. At the hearing before us, counsel for the appellant sought leave to adduce oral evidence from two witnesses who, it was said, had come forward only after the appellant's conviction. We agreed to hear their evidence de bene esse. In the event, it was the evidence of one of those witnesses, Anna Marie Thomas, which was of real significance.
20. Ms Thomas said that she had known KN for about ten years and, for some time, had lived next door to her. She also knew NM, although not well. All three women lived in the same village. For two or three years, the three of them had children at the local school. Subsequently, KN had moved her child elsewhere. The mothers would congregate around the school gate at the beginning and end of the day. Ms Thomas said that, on several occasions in about 2005, she heard KN talking to NC about the appellant. KN was suggesting that the appellant had interfered with her sexually. She seemed to think that he had done the same to NM. She told NM that she was going to report the matter to the police and was trying to persuade NM to do so also. Ms Thomas got the impression that KN wanted NM to "back her up". KN made such remarks over a period of about two weeks. Ms Thomas said that NM did not give any indication as to whether or not the appellant had behaved improperly towards her. She just tried to end the conversation.
21. Ms Thomas said that she had come to know the appellant in about 2006 when she began to work as a cleaner at the local Social Club, where he was a Committee member. She and other cleaners worked in the mornings and he would attend the Club and issue them with the necessary cleaning materials. She did not tell him about what KN had said because she had not believed the allegations. She said that she had been aware that the appellant was in some sort of trouble in 2006 but did not know that "anything had come of it" until his trial started. That would have been in December 2008. At some time, the appellant told her that KN and NM had made allegations against him. She then told him about what she had heard at the school gate. Ms Thomas was unable to say precisely when this conversation took place, save that it was not long - possibly a week, perhaps a matter of a few days – before she received a letter from the appellant's solicitors, asking her to make a statement on his behalf.
22. The relevant chronology is this. The trial lasted between 2 and 10 December 2008. After his conviction, the appellant was on bail. In his Affidavit, the appellant's solicitor, Mr Leighton-David McAdorey, said that, on 11 December 2008, the day after his conviction, the appellant told him of the existence of three witnesses (including Ms Thomas) who could confirm that KN and NM were well known to each other. He wrote to Ms Thomas the following day. Her typewritten statement is dated 7 January 2009.
23. When cross-examining Ms Thomas, prosecution counsel, Mr Martyn Kelly, did not suggest to her that her account of events was untrue.
24. For the appellant, Mr Meirion Davies submitted that Ms Thomas's evidence was plainly capable of belief and was highly significant. He referred to the evidence about the degree of contact between the two complainants contained in the judge's summing up at 17 E-G:

"…both [KN] and [NM] knew one another. They went to the same school… although they were not in the same year. You can see there is quite a large age difference there at school level. They knew each other, although no-one actually suggests that they were particularly friendly as between themselves but their common feature was this friendship with Sarah [Pepperell] and, in that context, both knew the defendant. Neither girl has said that they spoke to one another about the defendant's conduct towards them, nor has it been suggested that they have. In other words, sat down and put their heads together [our emphasis]. "

25. Mr Merion Davies argued that Ms Thomas's evidence suggested that the jury had been misled as to the extent of contact between KN and NM, as well as the extent to which there had been discussions between them about the allegations. This was important because of the emphasis which the prosecution had placed on the fact that the allegations against the appellant had come from two separate and independent sources. The judge had directed the jury in terms similar to those approved by this court in the case of R v Crawford [2008] EWCA Crim 1863. After directing the jury that the accounts given by the two complainants about the touching of their vaginas by the appellant were capable of being mutually supportive, he continued at 9G:

"… Of course, and this is a matter of common sense as well as good sound law, you have to be sure that their individual accounts are not in any way influenced by the other one's accounts. Of course, it is known in criminal trials that sometimes people concoct and fabricate stories by literally putting their heads together – sit down and work out a story in order to implicate and incriminate someone quite falsely. You would have to be satisfied so you were sure that that had not happened. But, equally, and this is important to stress, ideas can be planted in people's minds indirectly. By comment. By innuendo. By rumour. So, equally, you have to be sure that neither of these young girls has been, effectively, contaminated in that way, her memory influenced or thoughts influenced in that fashion. Provided you are sure that that has not happened, then each of these girls is capable of supporting the evidence of the other on those counts in the way I have described.

It goes a little further than that. The evidence of each girl is capable of showing, if you accept her evidence, that he had a sexual interest in young girls of that age or certainly did at the time of the alleged incidents, and if that was your conclusion, then the evidence by [KN] that she was sexually touched by the defendant on these various counts on the indictment, 1-7, so not merely to the vagina but touched, is evidence that can support [NM's] account that she was also sexually touched and vice versa, but, again, I repeat, you can only regard their evidence as supportive if you are sure that there was no contamination by one of the other and that each was giving an independent account without being influenced in any way, directly or indirectly, either by the other girl, [ KN] by [NM] or [NM] by [KN] or, for that matter, from any other source, from any other person."

26. Mr Davies argued that, had it been known that KN had been talking about her allegations to NM and had been pressing NM to make a complaint herself, the judge would have tailored his direction differently and the jury would have had to give serious consideration as to whether the evidence of the two girls, or either of them, had been contaminated.
27. Mr Davies invited the court to put the impact of Ms Thomas's evidence into context. This was a historic sexual abuse case involving allegations dating from 1983. Each of the allegations covered a time span of ten years, making it difficult for the appellant to meet them effectively, e.g. by establishing that he had been absent from home at the relevant time, or that certain witnesses had been present who could refute the complainant's evidence. He had been denied the opportunity to call evidence from his mother (who was alleged by KN to have witnessed some incidents of abuse) since she had died in 1989. His children, who had also been alleged to have been present when abuse occurred, had given evidence supporting his denials. He submitted that all these aspects had in themselves raised doubts as to the safety of the convictions. He argued that if Ms Thomas's evidence was added in, there could be no doubt that the convictions were unsafe.
28. For the prosecution, Mr Kelly did not seek to argue that Ms Thomas's evidence was incapable of belief. However, he submitted that it did not amount to evidence of collusion or contamination. All it showed was that KN had spoken to NM about the allegations and that NM had not responded. If anything, the evidence helped the prosecution in that it demonstrated that KN was making complaints of sexual abuse in 2005, before the time when she reported the matter to the police. He submitted that the evidence did not affect the safety of the convictions.
29. Section 23(2) of the Criminal Appeal Act 1968 requires the court, when considering whether to receive any evidence that was not adduced in the court below, to have regard in particular to:

"(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeals;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject to the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."

30. We are satisfied that the evidence of Ms Thomas is capable of belief. Although it is not entirely clear when she first informed the appellant about the relevant events, it is highly likely that it was towards the very end of or immediately after the appellant's trial. The appellant's solicitor was not informed of it until the day after the conviction and took immediate steps to obtain a statement from Ms Thomas and the other potential witnesses. In the circumstances, we consider that the provisions of section 23(2)(d) have been met and the other requirements of section 23(2) fulfilled and we therefore grant leave to adduce Ms Thomas's evidence.
31. The fact that there were allegations of sexual abuse made against the appellant by two individuals was an important feature at trial. The judge directed the jury on the potential for the evidence of one complainant to provide support for the evidence of the other. Given the evidence adduced at trial, the jury could have been confident that there had been no contamination of one complainant's evidence by the other. If they had heard evidence that KN had been talking about her allegations and encouraging NM to back her up by reporting a similar allegation to the police, the possibility of contamination of evidence would have been a matter to which they would have had to give careful consideration and the judge would have directed them accordingly.
32. It is necessary, as Mr Davies has urged us, to put the new evidence in context. The case involved allegations about events which occurred 16-26 years ago and which gave rise to inevitable difficulty for the appellant in answering them by way of anything but a general denial. The appellant suffered the added disadvantage that his mother, who was alleged to have seen some of the incidents of abuse, had died before the trial. The appellant was, however, able – very unusually, in our experience – to call two of his adult children to give evidence refuting in a number of important respects the account given by KN.
33. Against that background, we consider, applying the test set out in the case of R v Pendleton [2002] 1 WLR 72, that the evidence of Ms Thomas, if given at trial, might reasonably have affected the jury's decision to convict the appellant. We therefore find that the convictions were unsafe.
34. The prosecution seeks a retrial. Mr Kelly submitted that the prosecution was in a position to call its witnesses to give their evidence again and that the appellant is capable of standing trial. He argued that it was in the public interest for a retrial to take place.
35. For the appellant, Mr Davies submitted that the appellant's age and infirmity would render a retrial difficult. He has severe chronic obstructive pulmonary disease giving rise to breathing problems and, at the previous trial, he required regular breaks for oxygen to be administered. At a retrial, he would face the same difficulty in defending himself effectively as at the previous trial, with the added problem that the inconsistencies in the evidence of NM and her mother, which had been a feature of the previous trial, were unlikely to be repeated. He pointed out that, given the appellant's age, there was no realistic risk of him offending in the future.
36. We are conscious that these are serious allegations which, in the normal way, would warrant a retrial. However, the appellant is now aged 76, with a limited life expectancy. It is clear that a further trial would impose considerable strain both on him and on the court process. It is now almost three years since he was first interviewed about the allegations. The problems which the appellant inevitably experienced in defending himself at trial so many years after the events giving rise to the allegations would, in some respects, at least, be exacerbated by the further time which has now elapsed. He presents no realistic risk to the public of committing offences in the future. In all these circumstances, we consider that a retrial would not be in the public interest.
37. We therefore, allow the appeal and make no order for a retrial.