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Cite as: [2008] EWHC 1635 (Admin)

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		Neutral Citation Number: [2008] EWHC 1635 (Admin)
		CO/10292/2007

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand
London WC2A 2LL

12th May 2008

B e f o r e :

LORD JUSTICE MAURICE KAY
MR JUSTICE PENRY-DAVEY
____________________

Between:

	NGWENYA	Claimant
	v
	CROWN PROSECUTION SERVICE	Defendant

____________________

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____________________

Mr A Verghese (instructed by Chambers Solicitors) appeared on behalf of the Claimant
The Defendant did not attend and was not represented
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE PENRY-DAVEY: This is an appeal by way of case stated against the dismissal of the appellant's appeal against a conviction for assault on 11th January 2007.

The incident concerned took place in June 2006. On 3rd May 2007 there was an unopposed application by the prosecution and a Special Measures Order was made in respect of the evidence of the complainant, the appellant's daughter, who was, at the time of the video recording of her evidence-in-chief on 6th June 2006, six years of age and by the time that she was cross-examined by television link at the appeal on 1st June 2007 just short of her seventh birthday.

The appellant had previously been convicted on 11th January 2007 before the Bradford Justices of assault and she appealed. It was thus on 1st June 2007 in the Bradford Crown Court, before Her Honour Judge Jennifer Kershaw QC and Justices that her appeal against conviction was dismissed.

At the hearing of the appeal the video recording of the complainant was adduced as her evidence-in-chief and relied on. She said that she was at home with her brother, playing with her mother's shoes and getting them wet. Her mother, the appellant, got hold of a skipping rope and hit the complainant and her brother with it. The complainant pointed to two places on her body where her mother had hit her, but when she was cross-examined she said that her mother had not hit her and she had told a lie on the video. She had also lied, she said, to the police, social worker and the doctor at the hospital. When she was shown photographs of her injuries she said that she had caused them herself and it was not her mother who had done it. She had been joking, she said, when she told the police, the social worker and the doctor and she had done that because she just wanted to see what would happen.

A police constable had gone to the house on the day concerned and spoken to the complainant who told the officer that her mother had hit her with the skipping rope and she showed him some injuries. The complainant also told the emergency duty team social worker, Susan Tiernan, who attended the Bradford Royal Infirmary and was present when the complainant was medically examined. The complainant said that she had been hit by her mother with a skipping rope and that her dad knew about it.

Dr Cannons, a senior paediatric registrar at the infirmary, examined the complainant who told him she had been hit with a skipping rope lots of times. She did not know how many but it was more than five. She said it was her mother who had done it. She drew attention to her left shoulder, right arm and back. His examination revealed three recent and two older injuries on the right lower arm, left shoulder and right-hand side of the back. He said that the presence of parallel lines in each of the three injuries suggested that the complainant had been hit with a long, thin implement more likely to have been flexible than solid. The fact that there were three such injuries rendered non-accidental injury much more likely. He accepted self-infliction of such injuries as a theoretical possibility but he had not come across any such instance in nine years.

The appellant, giving evidence, denied that she had hit the complainant at all and said that she did not know how the complainant had got the injuries, save that she had been playing outside.

The court concluded that the injuries described by Dr Cannons had been sustained by the complainant earlier that day when she was hit by her mother with a skipping rope. Notwithstanding the need to exercise caution, having regard to the very young age of the child and having regard to the significant departure her live evidence made from her initial accounts, the court nevertheless found the child's video recorded evidence-in-chief to be clear, unequivocal, consistent and compelling. The court formed the view that it was plain that she was telling the truth and there were plain, consistent and coherent accounts to the police and social worker shortly after the incident. The medical evidence supported her account of the mechanism by which she had been injured, the only issue being the identity of the perpetrator. The court took the view that the complainant's evidence in cross-examination and re-examination was inconsistent within itself and included an assertion as to self-infliction not supported by the medical evidence. The concept of the six year old complainant lying about her mother for a joke and seeing what would happen was one that the court found difficult in the context of her being a child who wanted to be with her parents and was distressed at having to leave them but wanting the hitting to stop. Accepting that the complainant must have been lying, either on video or to the court on appeal, the court's evaluation of her live evidence was that she was lying on that occasion and, moreover, having a very uncomfortable time doing so.

The question for this court is whether there was evidence on the basis of which the court could convict the appellant of an offence contrary to section 39 of the Criminal Justice Act 1988, assault. In my judgment, and despite the submissions of Mr Verghese on the course of events at the Crown Court hearing, the Crown Court approached the matter entirely properly and carefully and were entitled to conclude that the offence was proved.

Mr Verghese applied for an adjournment at the outset of this hearing for a transcript of the hearing in the Crown Court. The case stated was filed as long ago as 18th October last year and there has been no application to amend it. I was unimpressed by Mr Verghese's submissions that a transcript would throw any new or different light on these proceedings. Accordingly, an adjournment was refused. In the light of my conclusion, I would dismiss this appeal.

LORD JUSTICE MAURICE KAY: I agree. If persuaded that any risk of injustice might follow from the refusal of an adjournment, we would not have refused it. I draw attention to the chronology to which my Lord has referred. Also, when one considers the evidence that was before the Crown Court, plainly that court was in an advantaged position to decide whether the truth was as had been recorded in the video interview in June 2006 or whether it was in accordance with the retraction of that account given by the complainant through video link in June 2007.

My Lord has referred to the passages in which the Crown Court has expressed its confidence in the truthfulness of the video recorded account. The case stated referred to the court's evaluation of the live evidence being a lying account and the complainant "having a very uncomfortable time of it doing so". If one then considers the account in the case stated of the re-examination of the complainant, one sees immediately the basis of that conclusion. In re-examination the complainant at first said she did not recall police officers coming to her house in June 2006, nor did she recall telling them her mother had hit her. However, she then said that she did recall telling them but that she had been joking. She next said that she did not recall telling the doctor her mother had hit her, but she then changed that to recall it and said that she had been joking to him as well. She said, still in re-examination, she did not recall telling the social worker about her mother, nor had she told the social worker that she wanted to stay living at home but wanted the hitting to stop. She even said that she did not recall making the video, but she then said that she did and that she had spoken about her mother on it.

I refer to this not in the form of any criticism of the complainant, who is a young child, but to explain why it was that the Crown Court, having found the video recorded evidence to be "clear, unequivocal, consistent and compelling", felt confident in rejecting the evidence given through the video link to the Crown Court at the hearing of the appeal.

For these reasons and for the reasons given by my Lord, I too would dismiss the appeal. The question posed by the case stated for this court is whether there was sufficient evidence to entitle the Crown Court to convict the appellant of an offence contrary to section 39 of the Criminal Justice Act 1988. The answer to that question is plainly in the affirmative.