England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Monday, 5 October 2009

1. LORD JUSTICE KEENE: The appellant, who is now aged 25, appeals against his conviction on a count of sexual activity with a male child. He was convicted of that offence on 25th June 2008 at Snaresbrook Crown Court after a trial before His Honour Judge Pardoe QC. He was later sentenced to imprisonment for public protection with a minimum specified of three-and-a-half years, less time spent on remand.
2. The offence in question formed count 1 on the indictment. It alleged that he had penetrated with his penis the anus of a 15-year-old boy, whom we shall call ST, not reasonably believing him to be the age of 16 or over.
3. There were three other counts on the indictment. Count 2 charged him with a similar offence against ST but on another occasion. He was acquitted on this charge, as he was on count 3 which charged him with inciting ST's younger brother, AT, aged 13, to engage in sexual activity not reasonably believing that he was 16 or over. Finally, count 4 was one which was not left to the jury. It alleged sexual assault on a female.
4. Counts 1 to 3 all arose out of alleged events at an internet café and phone shop in Stamford Hill, London, owned by the appellant's brother. It was opened, after some conversion works, on 13th July 2006 and the appellant worked there.
5. The two complainants were members of the Orthodox Jewish community and they and their father were customers of the shop. The three charges left to the jury related to three separate occasions and it was not alleged that AT had been present on either of the occasions giving rise to counts 1 and 2, or that ST had been present when the offence covered by count 3 had taken place.
6. Put very briefly, ST's evidence on count 1 was that he had been using the internet in the shop when the appellant had persuaded him to come into the back of the shop. There the appellant had taken his own trousers down and told ST to do the same. Then the appellant had buggered him. ST was somewhat vague in his evidence about the date of this. He said that it had been "about a year" before he had been interviewed on video by the police in September 2007, but he also said he thought it was "around Passover", which would have made it around April of 2007 or, conceivably, 2006. There was evidence that when he had first mentioned this incident to a police officer he had only referred to the appellant making him give the appellant a "blow job", as it was described.
7. It seems that he did not initially mention the incident which formed the basis of count 2. Again, ST was unclear about when that latter incident had occurred, but it had been in the evening and the appellant had, he said, wanted them to go out into the garden area behind the shop because there were now CCTV cameras in the shop itself. It was raining. In the garden, said ST, the appellant had got him to suck the appellant's penis and the appellant had then had anal intercourse with him.
8. Count 3 was based on AT's evidence that in August 2007 the appellant had invited him to masturbate, to watch pornography and to suck his penis, but that he (AT) had run out of the shop. There were a number of discrepancies in AT's evidence and other evidence about this alleged incident. The appellant for his part denied that any of the alleged offences had taken place.
9. There was a note from the jury after their retirement which asked whether, if the events had taken place, it was to be assumed that the defendant thought ST to be under the age of consent. The note referred specifically to the wording of counts 1 and 2 where it was quite properly alleged as an ingredient of the offence that the defendant did not reasonably believe that ST was aged 16 or over. The judge had in his summing-up directed the jury that they had to be sure of that ingredient as well as the others if they were to convict. After a lengthy discussion with counsel, the judge directed the jury in response to the note that they had to be sure that the defendant had no reasonable belief that ST was 16 or over before they could convict on either count 1 or count 2, but that on this they could draw proper inferences from the evidence such as ST's appearance.
10. No criticism is now made of that direction or indeed of any of the directions given by the judge in the course of his summing-up. The principal issue in this appeal is whether the conviction on count 1 is unsafe because of the acquittals, particularly the acquittal on count 2 which involved the same complainant. This alleged inconsistency of verdicts was what persuaded the single judge to grant leave.
11. Mr Doyle QC on behalf of the appellant in succinct and attractive submissions argues that there was no evidence that the appearance of ST had changed materially between the two incidents and that the preponderance of the evidence was that the two counts were separated by weeks or just months. Consequently, there is no basis for explaining away the combination of verdicts on the footing that the jury may have thought that the appellant believed the complainant to be 16 or over by the time of the second occasion. Both charges, he emphasises, turned on the credibility of this complainant ST. The acquittal on count 2 fatally undermined ST's credibility because the central issue was whether any sexual activity had occurred at all and the description of the sexual activity in each case was in essence the same. Given the appellant's denial that any sexual activity had occurred, it is difficult, submits Mr Doyle, to understand how on the evidence the jury could be sure that it had occurred on the first occasion but not on the second. There were, says Mr Doyle, other pieces of evidence undermining ST's credibility. No reasonable jury properly applying their minds to the evidence could have arrived at the differing verdicts which are either logically inconsistent or irrational. The case, it is said, has an unhappy ring to it.
12. We say straightaway that we do not find these arguments persuasive, despite the very beguiling way in which Mr Doyle has advanced them this morning. The test for when verdicts returned on the same occasion are unsafe because of inconsistency with other verdicts is well-established. It is normally necessary for an appellant to show not merely that the combination of verdicts is surprising but that there is a logical inconsistency between them. That, as this court said in the case of Bell, decided 15th May 1997 and summarised in Archbold News issue 6 at page 2, is an essential prerequisite for success on this ground. The court there emphasised quite rightly that jurors are specifically directed to give separate consideration to each count, as happened here.
13. In the case of G [1998] Crim.L.R 483, this court commended that analysis in Bell and said that it remained applicable where a complainant's credibility was in issue, where there was no corroboration and where the jury accepted some part of the allegations but did not seem to do so on other matters. That situation, said the court, gives rise to no logical inconsistency because a person's credibility is not "a seamless robe". So a jury might properly take a different view of the reliability and credibility of a complainant's evidence on different counts.
14. We entirely agree with that approach. It is one which underlies the earlier and well-known case of Durante 56 Cr.App.R 708 which was a case where it was logically inconsistent of the jury to convict the appellant of handling a stolen cheque and yet to acquit on the offence of endeavouring to obtain money on the same cheque a few minutes later, when the only issue on both counts at trial was whether he was too drunk to have the necessary intent. So the combination of verdicts there was logically inconsistent. The court also put the test there in terms of Wednesbury irrationality.
15. But we would also refer to the decision in WM, decided on 30th March 1999 and referred to at [1999] 6 Archbold News 3, a case referred to and quoted from extensively in the decision of this court in Chohan [2007] EWCA Crim 3175. We refer to that because in WM the judgment was given by the then Lord Chief Justice, Lord Bingham of Cornhill. Amongst other things he said this:

"... it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge's direction at its face value and gave effect to it.

The cases to which we have referred in our view make quite plain the proper approach. In a case other than the Cilgram type of case (which is in a class of its own), it is ordinarily for an appellant to show a logical inconsistency between the verdicts criticised and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent inconsistency. The court will not interfere with the verdict of the jury unless those tests are satisfied."

16. That then is the law, which reflects the fact that this court has not heard the witnesses and is in no position to know why the jury reached the verdicts which they did. Applying those legal principles, we can see no logical inconsistency in the verdicts here. The judge had given the jury the usual direction about considering each count separately and had gone on to add, "Your verdict need not be the same". He emphasised that again a few minutes later in his summing-up. He never suggested that counts 1 and 2 stood or fell together, nor could he properly have done so.
17. These two counts related to two separate occasions. The alleged offences took place in somewhat different circumstances - the first in the back of the shop itself; the second in the garden area because, it was said, by then CCTV had been installed. When he was cross-examined about the second incident, ST was very vague. He could not remember whether it had been raining or indeed even if the appellant had taken him into the garden where it had been raining, nor could he explain why on this occasion he had not left when the appellant had spoken about going to the back, save to say that he "was okay with it". It is clear that a certain amount of progress was made in the cross-examination of him on the second count.
18. The jury may have felt insufficiently sure about this count and, if so, they were, in our view, entitled to so conclude while being satisfied on count 1. We do not know what conclusion they reached on the timing of these two incidents, but it is also possible that they took the view that they were sufficiently separated in time for there to be a doubt on the second occasion as to the appellant's lack of reasonable belief that ST was 16. But we do not seek to look for some explanation as to how the verdicts were arrived at because there is no logical inconsistency in the verdicts. It may be surprising that the appellant was convicted on count 1, but acquitted on count 2, but that is not enough to render the verdict of conviction unsafe. We do not know on what basis of reasoning the jury reached those verdicts. We cannot say that no reasonable jury could have reached them. It follows that this conviction on count 1 is safe and the appeal therefore must be dismissed.