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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> H, R v [2000] EWCA Crim 83 (21st December, 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/83.html Cite as: [2000] EWCA Crim 83

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H, R v. [2000] EWCA Crim 83 (21st December, 2000)

Case No: 2000/01616/X4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT MAIDSTONE

(HIS HONOUR JUDGE BALSTON QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 21st December 2000

MR JUSTICE DOUGLAS BROWN:

1. This is the judgment of the Court. This applicant, H, was convicted at Maidstone Crown Court on 19 March 1999 before His Honour Judge Balston on 5 counts of rape and 11 counts of indecent assault. He was acquitted of 3 counts alleging other sexual assaults including buggery on his stepdaughter I, and one count of rape in respect of his daughter A. He was sentenced to a total of 12 years imprisonment. He has not renewed his application for leave to appeal against sentence after refusal by the single Judge.

2. He does now, however, renew his application for extension of time (10 months and 20 days) and for leave to appeal against conviction after refusal by the single Judge. After the explanation for the delay provided by counsel now appearing for him, Mr Bridge, we extend time.

3. The trial before Judge Balston was a retrial. The first trial took place in October 1998 and it involved 3 complainants, I, A and E, all daughters of his first marriage. Their complaints span the years between 1958 and 1977. At that trial L, much younger than the other complainants, was called as a witness on behalf of the applicant and gave evidence to the effect that he always treated her properly. The jury were unable to reach a verdict and after that L indicated that she too had been indecently assaulted and raped by the applicant and at the retrial counts involving her were added to the indictment covering the years 1987 to 1992.

4. The case for the prosecution was that the applicant had sexually abused I, A, E and L, systematically indecently assaulting them and/or raping them when they were between the ages of 7 and 14. The sisters did not give mutually supportive evidence and their evidence stood alone. The defence case was that the allegations had been fabricated. Each complainant had a motive for making up the allegations. In addition, in L's case, because she had given evidence for the defence of the first trial then retracted it, her evidence was not capable of belief.

5. In the grounds of appeal settled by Mr Bridge who was not counsel at the trial he appeared initially to be critical of trial counsel (Lord Thomas of Gresford QC and his junior Mr Haynes) and after privilege was waived their comments were obtained and were available to us. In the result Mr Bridge did not seek to lay blame at the door of trial counsel.

6. In support of the application, Mr Bridge advanced a number of grounds. We give them the numbering in his grounds of appeal:

(iii) He submitted that the Judge should have stayed the indictment because of delay on the principles in R v. Telford Justices, ex parte Badhan [1991] 2 QB 78. The thrust of the submission was that the allegations were so old particularly those made by I, that a fair trial was not possible. There had been an application on similar lines before His Honour Judge Griffiths who conducted the first trial who had ruled against that submission, and from Lord Thomas' response to the Registrar that it is apparent that a reasoned view was taken not to renew that application before the trial Judge. There was a very considerable lapse of time between the initial offences and trial causing difficulty for prosecution and defence. Provided the problems were adequately dealt with in the summing up, in our view it cannot be said the Judge came to a wrong conclusion on the application to stay.

(iv) In the alternative, Mr Bridge argued that the Judge gave no, or no sufficient warning to the difficulties the defendant faced because of the delay in these matters being reported to authority. He referred to the case of R v. H (Henry) [1998] 2 Cr App R 161 where having said that in cases of this kind each will fall for consideration on its own particular facts and circumstances to which the judges summing up must be appropriate, Lord Justice Potter said:

"It is ultimately nonetheless a matter for this court to decide whether the conviction is safe in the light of the length of the delay, the cogency of the evidence and all the circumstances of the case. To that extent comparison of the facts in other cases is unlikely to be decisive in deciding whether or not the absence of a direction or delay is fatal to the conviction, In that case there was no direction in this regard".

7. The real complaint of the applicant here is that the Judges direction was not adequate and was balanced too heavily in favour of the complainants difficulties. The Judge said this:

"In this case we are concerned with events that are said to have taken place a very long time ago. This happens from time to time, but when it does it is important that you should approach the case with the problem of delay well in mind. You are entitled to consider whey the matters did not come to light sooner. You will want to consider whether or not the delay is a reflection on the reliability of any of the complainants. You have been given explanations by them for the delay in each of their cases. I, when asked: "When you ran away as a child did you tell people then why?" Answer: "No, I didn't tell anybody, you weren't meant to tell anybody." "You weren't meant to tell anyone?" "No, because you're frightened of people like him." That in general terms was the reason for saying nothing until after her mother's funeral.

A's explanation was similar. She said: "At the time I didn't make no complaint, you didn't say or do anything when you were children." She was asked: "you said nothing for 30 years about it?" "That's right." "Why not?" "Because if I had said something I probably wouldn't have been believed. And it's just not something that you want to talk about anyway to anybody. You just feel confused and upset and hurt by it all."´

In the case of E she told you that she did tell her mother, who did nothing about it. Later she told AH.

As to L her explanation was that in the first trial she was more or less told by her father to give evidence for him and she agreed to do so as she thought he would go down without her having to admit that she too had been abused. After the case was over without the jury reaching a verdict she then decided to go to the police as he had been saying, the defendant that is, that he had got away with it. She also mentioned that he attempted to touch her again on her leg.

You will want to make allowances for the fact that with the passage of time memories fade. Witnesses, whoever they are, cannot be expected to remember exactly events which occurred many years ago. As we all know sometimes the passage of time plays tricks on memories. You should also make allowances that from the defendant's point of view the longer the time since that alleged incident the more difficult it may be for him to answer it. It would be likely, you may think, that it would be difficult for him to say that he was elsewhere at any particular time."

8. In our view, although the Judge dealt concisely with the problems the defendant faced, his comments covered the difficulty for all witnesses in remembering exactly events which happened many years ago and made clear to the jury the difficulties the defendant faced. Some Judges might have expanded on those difficulties but the direction was, in our judgment, adequate.

9. Mr Bridge also submitted that the delay had deprived the applicant of the opportunity to have access to contemporaneous documentation. The only example he gave related to an investigation by the police in 1968 of allegations of abuse made by I. The decision was taken not to take the matter further. The police papers are no longer available. Because of this the applicant was deprived of important material. It was therefore particularly unfair for the trial to take place in respect of I's allegations. We understand this argument, but we think it is open to doubt whether this documentation would have been of any value to the applicant, and it might well have turned out to be to his disadvantage. We do not entertain a doubt that there was a fair trial on the I counts. No other documentation was identified by Mr Bridge as being in any way of potential help to the applicant.

10. (i) Mr Bridge submitted that the Judge exercised his discretion wrongly in refusing to sever the counts in relation to each of the four victims and as an alternative to that, that the Judge should not have allowed the first indictment to be joined to the second when the Louisa counts were added to the case. He relied principally on R v. Christou [1997] AC 117. The House of Lords in Christou made it clear that the Judge had a statutory discretion to order that all charges be tried together. In his speech, Lord Taylor of Gosforth said this:

"Lord Lane in the quoted passage (from R v. Cannan [1992] Cr App R 16) refrained from specifying the factors which a Judge should consider when "taking into account all the things he should". They will vary from case to case but the essential criterion is the achievement of a fair resolution of the issues. That required fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list of the factors which may need to be considered are: How discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity and importantly, whether directions the Judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judges directions in law are to be applied faithfully. Experience shows, as for example in R v. Blackstock 70 Cr App R 34 and in the instant case, that juries where counts are jointly tried, do follow the Judges directions and consider the counts separately"

11. We have considered Mr Bridge's careful arguments and do not consider that he had begun to show that the Judge here failed to exercise his discretion properly.

12. We turn therefore, to his alternative ground (ii) where he criticises the Judge for not giving a sufficiently strong direction in an effort to avoid the prejudice of jointly trying these allegations simultaneously. The summing up was by no means lengthy and the Judge dealt with this aspect of the case at page 9 in this way:

"The fact that you may conclude that one of the complainants has been telling the truth does not of itself lend any additional credibility to the testimony of the others. You must decide whether or not each complainant has told you the truth and base your verdicts upon what she has told you. The fact that you may consider the defendant guilty of abusing one complainant does not mean that he must have abused the others. You must consider the case against the defendant in relation to each count separately and come to a separate verdict in respect of each count."

13. It is clear from the verdicts returned that the jury in accordance with Lord Taylor's forecast approached their task conscientiously and were able to give each count separate consideration. As we have already stated, he was acquitted on the only count he faced in respect of A and he was also acquitted on two counts of rape and a count of buggery so far as I was concerned. It is probably fruitless to speculate as to how the jury arrived at those verdicts but they provide strong evidence in support of Lord Taylor's view that juries do follow Judges directions and consider counts separately.

14. (vi) Mr Bridge submits that the Judge erred in law in admitting evidence from AH, E's Father in Law as to a complaint made to him by E. It was made a long time after the alleged event and should not have been admitted as a recent complaint and in some ways was contradictory of the evidence of Enid herself. There were two counts involving Enid, both of indecent assault between the ages of 12 or 13 and 15 or 16. Although Mr Bridge can legitimately complain that the complaint was not recent because it must have happened after her marriage, the Judge made it plain to the jury that the evidence was not what actually happened between her and the defendant. It's relevance was consistency with the account that she had given and the Judge stressed that the applicant had said that both Enid and her Father in Law were fabricating their evidence and he concluded with this direction:

"It is important that you should understand that the complaint to him does not amount to anything like independent evidence of what happened between E and the defendant and therefore it cannot of itself prove that the complaint to him was true."

15. While we think Mr Bridges right to be critical in some respects of this aspect of the evidence it does not of itself support a ground that these verdicts were unsafe.

16. There were other grounds of appeal which were not pressed before us. However, he did continue to rely on (vii) and (viii). He submitted (vii) that the Judge failed to give any or any adequate warning about the previous inconsistent statements in respect of L's evidence. The only reference to this was on page 21 where the Judge said:

"You will have to decide whether L was lying in the first trial or in this one. Her evidence to you was not consistent with her statement to the police, both in relation to the frequency with which she said she was raped and the wearing of condoms. You will have to decide whether she really has got an axe to grind against the defendant."

17. We think this jury must have had well in mind the remarkable circumstance that L had been a witness for her father in the first trial and a damning witness against him in the second. Although some judges might have amplified this part of their summing up we think that the Judge sufficiently described the problems that might arise from L's evidence.

18. In support of (viii) Mr Bridges submitted that the Judge was wrong to allow L's allegations to be given to the jury and should have withdrawn them at the close of the prosecution case. She not only admitted giving perjured evidence at the first trial but there were inconsistencies in material particulars in relation to the frequency of intercourse and the use or otherwise made of condoms. He relied on R v. Galbraith [1973] Cr App R 124 and R v. Shippey [1988] CLR 767. We are of the view that this ground is untenable. The jury were fully aware of the change in L's position between the two trials. No submission of no case on the L counts was made by experienced leading counsel. In our view such a submission would have failed because the evaluation of L's evidence was classically a task for the jury.

19. Like the single Judge we have considered the summing up as a whole. We agree with the assessment of the single Judge that the "summing up as a whole dealt with the issues fully and fairly".

20. This application is accordingly refused.