Court of Appeal in Northern Ireland Decisions

Neutral Citation No [2012] NICA 40	Ref:	GIR8495
Judgment: approved by the Court for handing down	Delivered:	18/5/2012
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________

BETWEEN:

THE QUEEN

Respondent;

-and- H

Appellant.

_______ Before: Morgan LCJ, Girvan LJ and Coghlin LJ _______

Girvan LJ (giving the judgment of the Court)

Introduction

[1] Following his arraignment on 26 April 2010 the appellant was tried before His Honour Judge Lockie and a jury on 15 counts particularised in the table below, the trial taking place between 15 November 2010 and 9 December 2010. On 8 and 9 December 2010, the appellant was convicted of all counts except 13 and 15 and he was sentenced as set out in the table:

Count	Charge	Sentence	Maximum sentence
1	Buggery with a boy under 16 years contrary to section 61 of the Offences Against the Persons Act 1861 (on a date unknown between 1 January 1980 and 16 August 1981)	14 years in custody	Life
2	Indecent assault on a male child contrary to section 62 of the Offences Against the Persons Act 1861 (on a date unknown between 1 January 1980 and 16 August 1981)	1 year, six months in custody concurrent with sentence for count 1	10 years
3	Gross indecency towards a child contrary to section 22 of the Children and Young Persons Act (NI) 1968 (on a date unknown between 1 January 1980 and 16 August 1981)	3 years in custody concurrent with sentence for count 1	2 years
4	Buggery with a boy under 16 years contrary to section 61 of the Offences Against the Persons Act 1861 (on a date unknown between 17 August 1981 and 31 December 1982)	14 years in custody concurrent with sentence for count 1	Life
5	Indecent assault on a male child contrary to section 62 of the Offences Against the Persons Act 1861 (on a date unknown between 17 August 1981 and 31 December 1982)	1 year, six months in custody concurrent with sentence for count 1	10 years
6	Gross indecency towards a child contrary to section 22 of the Children and Young Persons Act (NI) 1968 (on a date unknown between 17 August 1981 and 31 December 1982)	In respect of counts 6 to 9 inclusive: 3 years in custody concurrent with sentence for count 1	2 years
7	Indecent assault on a female child contrary to section 52 of the Offences Against the Persons Act 1861 (on a date unknown between 1 July 1994 and 31 December 1994)	Indecent assault on a female child contrary to section 52 of the Offences Against the Persons Act 1861 (on a date unknown between 1 July 1994 and 31 December 1994)	10 years
8	Indecent assault on a female child contrary to section 52 of the Offences Against the Persons Act 1861 (other than as alleged at count 7) (on a date unknown between 1 July 1994 and 31 December 1994)	Indecent assault on a female child contrary to section 52 of the Offences Against the Persons Act 1861 (other than as alleged at count 7) (on a date unknown between 1 July 1994 and 31 December 1994)	10 years
9	Indecent assault on a female child contrary to section 52 of the Offences Against the Persons Act 1861 (other than as alleged at counts 7 and 8) (on a date unknown between 1 July 1994 and 31 December 1994)	Indecent assault on a female child contrary to section 52 of the Offences Against the Persons Act 1861 (other than as alleged at counts 7 and 8) (on a date unknown between 1 July 1994 and 31 December 1994)	10 years
10	Rape contrary to common law (on a date unknown between 1 July 1994 and 31 December 1994)	In respect of counts 10: 14 years in custody concurrent with sentence for count 1	Life
11	Rape contrary to common law (other than as alleged at count 10) (on a date unknown between 1 July 1994 and 31 December 1994)	14 years in custody concurrent with sentence for count 1	Life
12	Threats to harm the appellant's half-brother, contrary to Article 47(2) of the Criminal Justice (NI) Order 1996 (on 14 December 2008)	Nine months in custody concurrent with sentence for count 1	Pursuant to Article 47(6)(a), on conviction on indictment, imprisonment for a term not exceeding 5 years or to a fine or to both.
13	Threats to harm the appellant's half-sister, contrary to Article 47(2) of the Criminal Justice (NI) Order 1996 (on 14 December 2008)	Acquitted	Acquitted
14	Threats to harm the appellant's nephew, contrary to Article 47(2) of the Criminal Justice (NI) Order 1996 (on 14 December 2008)	Nine months in custody concurrent with sentence for count 1	Nine months in custody concurrent with sentence for count 1
15	Threats to harm the appellant's niece, contrary to Article 47(2) of the Criminal Justice (NI) Order 1996 (on 14 December 2008)	Acquitted	Acquitted
In respect of counts 1 to 11 the following orders were imposed: disqualification orders were imposed ordering that the defendant be disqualified from working with children under the Protection of Children and Vulnerable Adults (NI) Order 2003; sex offenders registration was required for an indefinite period; and a sexual offences prevention order for five years from release.	In respect of counts 1 to 11 the following orders were imposed: disqualification orders were imposed ordering that the defendant be disqualified from working with children under the Protection of Children and Vulnerable Adults (NI) Order 2003; sex offenders registration was required for an indefinite period; and a sexual offences prevention order for five years from release.	In respect of counts 1 to 11 the following orders were imposed: disqualification orders were imposed ordering that the defendant be disqualified from working with children under the Protection of Children and Vulnerable Adults (NI) Order 2003; sex offenders registration was required for an indefinite period; and a sexual offences prevention order for five years from release.	In respect of counts 1 to 11 the following orders were imposed: disqualification orders were imposed ordering that the defendant be disqualified from working with children under the Protection of Children and Vulnerable Adults (NI) Order 2003; sex offenders registration was required for an indefinite period; and a sexual offences prevention order for five years from release.
Total sentence	14 years' imprisonment.	14 years' imprisonment.	14 years' imprisonment.

[2] The appellant was convicted of specimen counts of buggery, indecent assault and gross indecency against his nephew (counts 1 to 3 relating to the period before the appellant turned 14 and counts 4 to 6 relating to the period thereafter) and specific counts of indecent assault and rape of his niece (counts 7 to 11). He was also convicted of specific counts of threats to harm his half-brother and his nephew on counts 12 and 14. The appellant who has an older half-sister and older half-brother from his mother's first marriage was the uncle of the complainants who are the children of the appellant's half-sister. He was acquitted on counts 13 and 15.

[3] The offences which it was alleged were committed against the nephew were said to have occurred when the nephew was between the ages of 7 and 10 when the appellant was aged between 12 and 15. The offences which it was alleged were committed against the niece were said to have occurred when she was aged 13/14 and when the appellant was 27. At the time of the trial the appellant was 43. He had been separated from his wife at the time when the offences against the niece were alleged to have occurred.

Grounds of appeal

[4] The appellant relies on the following grounds of appeal:

Ground 1 – Procedural irregularity:

(i) On the first day of trial, one of the jurors became distressed while the appellant's niece was giving evidence and left the jury box without permission, following which the court discharged her from jury service. The appellant submitted that the judge erred in proceeding with 11 jurors and should have discharged the jury because the emotional state of the juror could have affected the jury and caused them to feel added sympathy for the complainants.

(ii) The appellant raises concerns about the way the jury returned verdicts for counts 1 to 9. Unanimous verdicts were delivered on counts 10 to 15. On the second day of deliberations, there was an indication at 2.32 pm that the jury could not arrive at verdicts on counts 1 to 9, but at 2.49 pm they returned guilty verdicts by a majority of 10-1. An hour earlier they had asked what the appellant had said about his knowledge of the difference between right and wrong.

Ground 2 – Logical inconsistency:

[5] The appellant alleges that having regard to the evidence the guilty verdicts on counts 12 and 14 (threats to harm the half-brother and nephew) were logically inconsistent with the not guilty verdicts on counts 13 and 15 (threats to harm the half-sister and niece).

Ground 3 – The verdicts were unsafe there being a lurking doubt:

[6] The verdicts are unsafe because of inter alia:-

(a) the nephew's changes to his statements;

(b) the unlikelihood of the assaults against the niece a few weeks after she had spent a week in a lorry cab with the appellant;

(c) the incredible nature of the niece agreeing to go in a car with the appellant in her pyjamas if she had been recently assaulted;

(d) the incredible nature of the rape claims, given the claim that it was dark when the rapes were alleged to have occurred in July/August;

(e) the incredible nature of the rape claims, given the niece's absence of memory about the vehicle and concession that it would have been very difficult for the appellant to have manoeuvred as alleged;

(f) the incredible nature of a 14 year old being able to identify the sound of the appellant opening a condom wrapper; and

(g) the circumstances leading to the majority verdicts on counts 1 to 9.

[7] The single judge gave leave to appeal on the second ground but refused leave on the other grounds.

Procedural irregularity: Discharge of a juror

[8] Article 21 of the Juries (Northern Ireland) Order 1996 permits a trial to proceed where a juror is discharged as being incapable of continuing to act:

"[21] Continuance of criminal trial on death or discharge of juror

(1) Where in the course of a criminal trial any member of the jury dies or is discharged by the court as being incapable of continuing to act through illness or for any other cause, but the number of its members is not reduced below nine, the jury shall nevertheless, subject to paragraphs (2) and (3), be considered as remaining for all the purposes of that trial properly constituted, and the trial shall proceed and a verdict may be given accordingly.

….

(3) … on the death or discharge of a member of the jury in the course of a criminal trial the judge may discharge the jury in any case where the judge sees fit to do so."

[9] About one and a half hours into the cross examination of the first complainant, the niece, one female juror abruptly left the court. The trial judge asked the court to rise for a short time and asked a member of staff to escort the juror in question. He said that when she had composed herself the hearing could continue. After the remaining members of the jury were escorted from the courtroom in their absence Mr Orr QC quite properly suggested that the juror who had left should be kept separated from the rest of the jury and the judge agreed and so directed. The court then rose at 12.57 pm. At 2.06 pm the judge in the absence of the jury indicated to counsel that he had ascertained that the juror, identified as no. 33, was not fit to continue to act as a juror and he discharged her. Mr Orr QC raised the question whether it might be prudent to discharge the whole jury and restart the trial before a fresh jury on the following Monday. However, he stated that he had no strong views on the issue. The judge indicated that he was satisfied that there had been no contamination by the juror of the rest of the jury. Mr McMahon QC on behalf of the Crown pointed out that the witness was well into her evidence and he submitted that the case should proceed before the remaining eleven jurors. The judge decided to continue the trial with the remaining eleven jurors. When the rest of the jury came back into court the judge indicated to them that juror no. 33 had been discharged and the trial would continue with the jury consisting of the remaining eleven jurors. The cross examination was then resumed.

[10] We consider that the judge was fully entitled to take the course which he did. There is nothing to suggest that there was any risk of contamination of the rest of the jury by the words or actions of the juror who had abruptly left the courtroom. Her absenting herself from the court was not of itself necessarily suggestive that she must herself have been a victim of sexual abuse or must have been exposed to its consequences. She was kept separate from the rest of the jury after she left the courtroom. No reasonable juror could draw from her actions conclusions adverse to the accused. The judge was at pains in his summing up to explain to the jury that they were bound to analyse the evidence against the accused in a fair and dispassionate manner leaving aside emotion. Thus in his summing up he stated:

"You have been dealing and hearing about sexual abuse in considerable detail and in an emotional sense there was some distressing scenes when witnesses broke down and cried and so forth. That's a situation that often occurs in this type of case but you must avoid an emotional reaction to that sort of evidence. It is your duty to approach your task of deciding on the factual issues on this matter in a fair and dispassionate manner, without sympathy for the prosecution or against the prosecution, for the defence or against the defence… you conduct a thorough reasoned balanced assessment of all the evidence and facts that you have heard."

[11] Accordingly we must reject this ground of appeal.

Procedural irregularity: the timing of the verdicts on counts 1 to 9

[12] Mr Orr QC argued that the court should be concerned about the timing of the verdicts on counts 1-9. Those verdicts appeared to follow very shortly after an intimation to the court that the jury was deadlocked on the outstanding counts. This, it was argued, called into question the safety of those convictions.

[13] In order to deal with this ground of appeal it is necessary to consider the sequence of events as they transpired in the course of the trial. The judge completed his summing up on 8 December 2010. The jury were sent out to commence deliberations at 11.01 am. They came back later that day with unanimous verdicts on the counts alleging rape, counts 10 and 11. The jury were sent home at the end of the day and returned on 9 December to resume deliberations. Shortly before 1.00 pm the jury posed a question to the court which was dealt with and the jury were sent out again at 1.11pm. The question which the jury raised related to the defendant's state of knowledge of right and wrong when the alleged offences involving the nephew occurred. At 2.23 pm the jury were brought back to court and asked if they had reached verdicts on any of the remaining counts. They had reached unanimous verdicts on Counts 12 – 15, finding the appellant guilty on counts 12 and 14 and not guilty on the other two counts. The judge then gave the jury a perfectly correct majority verdict direction and he concluded by telling the jury to let the court know if they were locked on any of the counts. The jury then went out again at 2.26 pm. At 2.32 pm the judge received an indication that the jury could not agree on the remaining counts. When the jury were brought into court at 2.48 pm they were asked whether they had reached a unanimous or majority verdict on the remaining counts. The foreman informed the court that the jury had by a majority of 10:1 found the appellant guilty on the remaining counts 1 – 9.

[14] It is clear that the overriding principle is that no pressure may be exerted on a jury to return a verdict. Lord Lane said in R v Watson [1988] QB 690:

"One starts from the proposition that a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so."

In this instance the jury had been put under no pressure of time by the court. Indeed the judge had earlier said to the jury in the course of his summing up:

"It's an onerous task and take as much time as you want, please, members of the jury, to reach your decisions. There is no time limit at all and I'm not going to deal with any situation such as majority verdict at this stage. What we are looking for is a unanimous verdict of either guilty or not guilty … A majority verdict is well down the line as far as this situation is concerned."

The jury had been given ample time to consider their verdicts and nothing was said or done that could have appeared to pressurise them into reaching a verdict. It is clear that the jury went about their task with care and circumspection. The fact that they moved from a position of being unable to reach a majority of 10:1 to a position where they were so agreed in a short period between 2.32 pm and 2.48 pm does not indicate that they were acting under pressure or threat. It simply indicates that at a point in time a sufficient consensus was reached for them to be able to return a verdict. Accordingly, we must reject this ground of appeal.

The issue of logical inconsistency

[15] Archbold identifies the following principles from the case law at para. 7-70

(a) the appellant bears the burden of showing not merely that the verdicts were inconsistent, but that they were so inconsistent as to call for interference by an appellate court;

(b) the court will interfere if it is satisfied that no reasonable jury who had applied their mind properly to the facts could have arrived at the conclusion reached;

(c) there is no shortage of authority to support the proposition that logical inconsistency does not make the verdict unsafe unless the only explanation of the inconsistency must or might be that the jury was confused or adopted the wrong approach; and

(d) the Court of Appeal has said that there is much to be said for the view that once logical inconsistency is established, the onus should be on the prosecution to show that the verdicts had not resulted from confusion or wrong approach of the jury (R v Cova Products Ltd [2005] Crim LR 667).

Blackstone more succinctly states at D25.22 that the Court of Appeal will quash a conviction based on apparently inconsistent verdicts only if those verdicts are such that no reasonable jury applying their mind to the evidence could have reached the conclusions they did (Durante [1972] 1 WLR 1612).

[16] Mr Orr QC contended that the jury could not logically have convicted the appellant on counts 12 and 14 and at the same time have acquitted the appellant on counts 13 and 15 because all four alleged offences were said to have arisen from essentially simultaneous threatening utterances of the appellant to RM on 14 December 2008. He referred to what the judge had said to the jury in his charge:

"And you have to make a separate decision with regard to each of the counts involving each of the four named individuals."

'…On the other hand, if the prosecution has satisfied you beyond reasonable doubt that the defendant's words and behaviour constituted a credible threat by him to inflict future harm upon the four named individuals in the context of their involvement in the police investigation, you would be entitled to find the defendant guilty on those counts'."

Counsel contended that that passage confirmed the simultaneous nature of the threats and utterances in respect of the four named persons. The evidence grounding each of the counts was identical and there was no logical manner of reaching different verdicts.

[17] The Crown, however, correctly drew attention to the fact that the alleged utterances in respect of RM were, according to the evidence, more detailed in that they included a specific reference to RM having given the police his phone on which relevant calls were recorded and the appellant had given a physical demonstration of cutting the nephew from ear to ear by drawing his finger across his throat to reflect the action of cutting a throat. The appellant had gone to RM's house to make the threats directly to him and gave a graphic illustration of what he threatened to do to the nephew. The jury could logically have concluded that the threats to RM and the nephew were more real and credible than the threats in respect of the other two persons.

[18] We conclude that the verdicts accordingly were not logically inconsistent.

The safety of the convictions

[19] The appellant challenges the safety of the convictions in respect of both the nephew and the niece. Mr Orr QC relied on what he argued were important inconsistencies in the evidence of the nephew and what he described as the incredulity (sic) of the evidence of JL by which we understood him to mean the incredibility of some of the niece's evidence. He argued that the nephew had clearly changed important parts of his story. These changes included referring initially to events happening in Derrybeg which could not have happened chronologically, referring to events happening in the appellant's double bed and then changing that to his grandmother's double bed, describing how the acts of buggery were committed in differing terms and giving different versions of the regularity of abuse. In the case of the evidence of the niece counsel argued that her version of events was so unbelievable that it should have been rejected by the jury. In particular counsel argued that the physical manoeuvre described in relation to the appellant's carrying out of the rapes in the vehicle was unworthy of belief.

[20] The jury had the advantage which this court does not have of hearing and seeing the witnesses giving evidence and considering their demeanours. This included the evidence of the nephew, the niece, the appellant and the Detective Constable Close, the officer who had taken the nephews' statements. The police witness accepted that he had incorrectly recorded some information from the nephew and recognised that he personally was going through a difficult time when he was investigating the allegations. The jury having had the advantage of hearing and seeing the witnesses and having carefully and over a protracted period scrutinised their evidence concluded that they were satisfied of the guilt of the accused. It is almost inevitable that in cases such as this there would be inconsistencies in the evidence of parties who are attempting to remember events occurring years previously and are trying to remember peripheral details. Mr Orr QC frankly accepted that he had no criticism of the judge's charge to the jury which was fair and balanced. In these circumstances we conclude that there is no basis for this court substituting its view of the evidence for that of a properly directed conscientious jury who had the advantage of seeing and hearing the witnesses. We must reject this ground of appeal.

The sentences in relation to gross indecency

[21] As the table set out in para [1] above shows at the time the offences of gross indecency were committed the statutory maximum sentence was 2 years imprisonment. This sentence was subsequently increased for offences committed after 28 July 2003. The sentences imposed by the trial judge accordingly must be reduced to 18 months on counts 3 and 6.