Appeal - application for leave to appeal conviction.
Before : |
Mr John Martin, Bt., Q.C., President; |
E
-v-
The Attorney General
E acting on his own behalf with the assistance of Advocate S. E. Fitz as Amicus Curiae.
S. J. O'Donnell, Crown Advocate for the Attorney General.
JUDGMENT
montgomery ja:
1. This is the judgment of the Court. Between 20 and 24 April, 2015, the Applicant was tried in the Royal Court Samedi Division on an assize sitting (Sir Christopher Pitchers, Commissioner and a jury). On 24 April, 2015, (AG-v-E and F [2015] JRC 134) the Applicant was convicted of 13 offences of indecent assault, indecency and attempted incest on the Complainant, his sister. He was found not guilty of two offences of indecent assault and incest (Counts 5 and 9).
2. The Applicant seeks leave to appeal his conviction on the grounds that a substantial miscarriage of justice has occurred. The Applicant contends that the verdicts of guilty are inconsistent with the not guilty verdicts on Counts 5 and 9 and thus the guilty verdicts are unreasonable. It is also contended that the convictions cannot be supported having regard to the evidence. In addition complaint is made about the form of words, agreed by the Applicant and Prosecution at trial, that was used to explain the circumstances in which the complaint was made.
3. The Applicant's arguments and those of Crown Advocate O'Donnell raise three issues:
(i) Whether the verdicts were inconsistent and, if so, whether any inconsistency is explicable;
(ii) whether the verdicts were supported by the evidence; and
(iii) the form of the admission by the Applicant.
4. The Applicant accepts the principle established in R v Durante [1972] 56 Cr App R 708 at 714 and R v Hunt [1968] 52 Cr App R 580 that the burden of showing that verdicts are inconsistent falls on him. The Applicant also accepts that not only must inconsistency be established but it must also be shown to be such as to call for interference by an appellate court, see R v Bell unreported England and Wales Court of Appeal 15 May 1997. Inconsistency will normally only call for appellate interference if it is not possible to postulate a legitimate chain of reasoning which could reasonably explain the inconsistency.
5. We accept that the verdicts of the jury might on casual analysis suggest an inconsistent approach to the credibility or reliability of the Complainant. However, as the Court confirmed in Rogers v R [2004] EWCA Crim 489, a jury does not necessarily act inconsistently if it accepts some parts of a witness' evidence and rejects others. As Buxton LJ put it in R v G [1998] Crim LR 483, credibility and reliability are "not a seamless robe". This analysis was adopted by this Court in X v AG [2010] JCA 212. For the reasons set out below we do not consider that on a true analysis the verdicts were inconsistent.
6. It is also suggested that there may be a category of exceptional cases, such as R v Cilgram [1994] Cr LR 861, where even if there is no logical inconsistency, the Court may nevertheless decline to uphold the convictions. In our view Cilgram and cases like Michael B [2005] EWCA Crim 3174, R v Clarke v Fletcher England & Wales Court of Appeal Unreported 30 July 1997 and R v Dhillon [2011] 2 Cr App R 10 do not form a separate category establishing a principle under which an appeal may be allowed notwithstanding the absence of irrational inconsistency. These cases all turn on the particular facts of the cases that gave rise to concern about the safety of the convictions (for example in Dhillon the jury appear to have rejected the occurrence of an incident that both parties admitted had taken place). Thus no extended principle of general application in sexual or other cases can be extracted from these cases. In any event we share none of the doubts about the safety of the convictions that were expressed in these cases.
7. Count 5 concerned an allegation of an indecent assault committed with another man, G. The allegation was that pencils had been inserted into the Complainant's anus. The decision to acquit the Applicant on Count 5 is not logically inconsistent with the willingness of the Jury to accept the testimony of the Complainant on other issues. The case on Count 5 was significantly weaker than the other counts. This appears to have been recognized by the defence at trial since a submission of no case to answer was made in respect of Count 5 on behalf of G. The Complainant had given an earlier account in 2010 on which she was cross examined that revealed her memory was uncertain. In 2010 she thought the pencils had been inserted into her vagina and that F had been present.
8. Even on her account at trial the Complainant had not been able to see who inserted the pencils into her anus since she had her back to her assailant and she said she was not 100% sure whether it was the Applicant who spoke to her during the assault. She said she thought the Applicant was closer to her but she "can't say 100% who it was". It is entirely possible that the jury accepted that she was assaulted but were unsure whether it was the Applicant or his co-defendant or both who were responsible for the assault.
9. Count 9 concerned a charge of incest. Count 9A was an alternative charge of indecent assault on which the jury convicted. The jury also convicted the Applicant on Counts 10 and 11 of attempted incest by acts of attempted sexual intercourse.
10. The decision to acquit the Applicant on Count 9 but to convict on Counts 9A, 10 and 11 is readily explicable on the basis that the jury may have doubted whether the Applicant intended to penetrate the Complainant. The Complainant gave evidence in relation to Count 9 that the Applicant had penetrated her vagina with his penis but said "he didn't have full penetrative sex with me. He entered me and he withdrew." In relation to a later incident she said: "He used to sometimes say to me 'Is it up? Is it in? I didn't know what that meant. I didn't know what that felt like. It happened in the bathroom, he'd say to me. I'd just say 'Yeah'. I don't, I didn't know."
11. Following a note from the Jury suggesting that they might be concerned as to whether the Applicant intended to penetrate the Complainant in relation to the allegation in Count 9, the Commissioner directed the jury that if they considered that any act of penetration might be accidental rather than deliberate, they could consider whether the Applicant was nevertheless guilty of an indecent assault in placing his penis against the Complainant's vagina. It appears that this may reasonably be the basis for the acquittal on Count 9 but the conviction on 9A of indecent assault in the alternative. There is no inconsistency in this verdict which appears to be logical and to reflect legitimate doubts as to the Applicant's intentions based on the evidence.
12. The Applicant argues that the evidence of the Complainant was unconvincing and did not support the verdicts. Criticisms were made of the Complainant's failure to recall matters of detail and her potentially contradictory answers. Her evidence is said to be unbelievable and to make no sense. The Applicant focuses on the detail of her evidence and is critical both of aspects of her detailed recollection (for example her account of focusing on a dolphin shower curtain whilst she was assaulted) and her lack of memory (not knowing how she got into the bathroom on one occasion or why the Applicant was having a bath).
13. One difficulty with these submissions is that they were not made at the close of the prosecution case. Whilst this does not prevent the submission being made now, to this Court, neither the Applicant nor his Advocate at trial, who had the benefit of seeing the Complainant give evidence, suggested to the Commissioner that her evidence was such that a jury properly directed could not convict. More importantly however the submissions fail to recognise that the Complainant was giving evidence nearly 20 years after the events and her memory was inevitably affected by the passage of time. In addition the Complainant was attempting to explain her actions and reactions as a child as an adult witness. This is always a difficult task. Her evidence had to be considered in the context of her circumstances as a child.
14. The Applicant also suggests that the Complainant's credibility can be assessed by reference to what he regards as the improbability of the Complainant entering the bathroom "in light of what she says previously occurred." The Applicant argues that the Complainant's "expressed love for the Applicant" was inconsistent with her allegations. These arguments are in our judgment based on stereotypical assumptions about sexual crime and distress that are not well founded.
15. In England and Wales the variability of the behaviour and demeanour of Complainants and defendants in sexual cases led to the Judicial Studies Board 2010 Benchbook publishing a series of directions to deal with problems of assumptions in sexual cases with the following explanation:-"The experience of judges who try sexual offences is that an image of stereotypical behaviour and demeanour by a victim or the perpetrator of a non-consensual offence such as rape held by some members of the public can be misleading and capable of leading to injustice. That experience has been gained by judges, expert in the field, presiding over many such trials during which guilt has been established but in which the behaviour and demeanour of Complainants and defendants, both during the incident giving rise to the charge and in evidence, has been widely variable. Judges have, as a result of their experience, in recent years adopted the course of cautioning juries against applying stereotypical images how an alleged victim or an alleged perpetrator of a sexual offence ought to have behaved at the time, or ought to appear while giving evidence, and to judge the evidence on its intrinsic merits. This is not to invite juries to suspend their own judgement but to approach the evidence without prejudice." See also R v MM [2007] EWCA Crim 1558, R v D [2008] EWCA Crim 2557 and R v Breeze [2009] EWCA Crim 255, R v Miller [2010] EWCA Crim 1578).
16. The Commissioner in his summing up adopted the directions in the 2010 Benchbook. He reminded the jury that they should approach the case with care and not simply look at the events through adult eyes. The Commissioner directed the jury to make allowance for the passage of time and the fading of memory. No complaint is made about these directions to the jury that appear to us to properly reflect the need for the jury to approach the evidence fairly and without preconceptions.
17. We have considered with care the evidence of the Complainant and the criticisms that have been levelled at it. However approaching that evidence without preconceptions and in context, the criticisms that are made of it do not appear to us to be justified.
18. It is argued that the degree of corroboration for the account of the Complainant is slight. However her account of the assaults charged in Counts 1 to 3 were corroborated by the pleas of guilty entered by F and confirmed in his evidence to the jury as a prosecution witness. The Applicant, in his evidence, denied that F had ever even been to his house when the Complainant was between 9 and 11 years of age. The jury were entitled to reject the evidence of the Applicant on this issue. The decision on Counts 1 to 3 appears to us to wholly justified and fully corroborated.
19. The Applicant submits that it was only because the Commissioner insisted on the jury being provided with an agreed statement as to the circumstances in which the Complainant first made a statement to the Police that he made the admissions contained in the agreed statement. He now contends that the jury should not have been told that he had been involved in an earlier trial in which he had been acquitted since this caused irreparable prejudice to him. However the transcript reveals that the Applicant had a choice as to whether he made the admission and he chose, on advice, to do so.
20. The delay in the Complainant making a statement was likely to be the subject of examination and cross examination. The advantage of the agreed statement was that the jury were told in opening the prosecution was for "an unconnected matter" and that the Applicant had been acquitted. The admission avoided the risk of prejudicial detail coming out in cross examination. The Applicant was given the benefit of a full good character direction and we do not accept that he would have been caused prejudice by this admitted statement.
21. For these reasons we consider that the arguments in support of the application for leave to appeal against conviction are unsustainable and we dismiss the application.
Authorities
R v Durante [1972] 56 Cr App R 708.
R v Hunt [1968] 52 Cr App R 580.
R v Bell unreported England and Wales Court of Appeal 15 May 1997.
Rogers v R [2004] EWCA Crim 489.
R v G [1998] Crim LR 483.
R v Cilgram [1994] Cr LR 861.
Michael B [2005] EWCA Crim 3174.
R v Clarke v Fletcher England & Wales Court of Appeal Unreported 30 July 1997.
R v Dhillon [2011] 2 Cr App R 10.