ON APPEAL FROM THE CROWN COURT AT KINGSTON
H.H. JUDGE CAMPBELL
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE PENRY DAVEY
and
MRS JUSTICE SHARPE DBE
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JASON DAVARIFAR |
Appellant |
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- and - |
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THE QUEEN |
Respondent |
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Linda Strudwick for the Respondent
Hearing date: 28 October 2009
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Crown Copyright ©
Lord Justice Stanley Burnton:
Introduction
The facts
The grounds of appeal
(1) Was there a proper evidential basis for alleging that GS's earlier allegations was false?(2) If so, if the evidence relied upon by the appellant had been before the jury, was it reasonably capable of leading to a different verdict?
A proper evidential basis
(1) GS made a detailed witness statement in May 2006 in which she said that when she was aged between 7 and 9 she was sexually abused and raped by DW, the adopted son of her then foster carers. She did not allege anal penetration. The first person she had told about the abuse had been a worker in her children's home, Hayley Radic (whose married surname was Rabin): "I remember telling her I was abused as a child. I know I was on speed when I told her so I don't think she took much notice of me." She said that she was prepared to go to court and give evidence.(2) According to AS, who had been GS's friend but whose relationship with her at the date of her statement to the police in July 2006 had become distant, when GS was about 13 years old, she gave her the impression that she had been sexually abused by DW. GS was upset when she spoke to AS, who tried to get her to speak to someone else, but GS thought she would not be believed. GS swore her to secrecy. Some years later, when GS was 18, she mentioned the sexual abuse again. She was angry with herself for not doing anything about it.
(3) Dr Lynn Brady had been GS's advocate since 2006. She had always found her to be honest. In March 2006 GS told her that when she lived with Mr and Mrs W she had been abused by their adoptive son DW, when she had been, she thought, between 6 and 10 years old. The abuse included anal penetration. She said he had also "fiddled" about with another girl, GC. GS had only remembered the abuse when she was in a children's home from the age of 16. GS said she had told Hayley Rabin, but didn't think anyone would believe her because she was on speed. It was Dr Brady who caused GS to report the matter to the police.
(4) Hayley Rabin gave a statement in which she said that she worked as a social worker at the children's home where GS has been a looked-after child aged around 14 to 15. "One thing she was not was a liar. She was not a liar, if she had something to say she would say it." She had not disclosed any sexual abuse to her. If she had done so, Ms Rabin would have recorded it on her file and informed her supervisor.
(5) DW was interviewed by the policy and denied GS's allegation.
(6) GC could not be traced.
(7) The CPS had not prosecuted DW.
(1) There were discrepancies in GS's accounts of the rooms in which the abuse had taken place.(2) She had not mentioned anal penetration in her detailed witness statement to the police; if it had taken place, one would have expected her to have mentioned it.
(3) Her assertion that she had told Hayley Rabin of the abuse was contradicted by Ms Rabin.
(4) The CPS had decided not to prosecute DW: it followed that with a considered that there had been no reasonable prospect of a successful prosecution.
Was this evidence reasonably capable of resulting in a different verdict?
(a) The facts
(b) Discussion