Case No. 2003/03916/C1

Neutral Citation Number: [2004] EWCA Crim 1358
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  21  May  2004

B e f o r e:

LORD  JUSTICE  WALLER

MR  JUSTICE  DAVIS

and

MR  JUSTICE  DAVID  CLARKE

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R E G I N A

- v -

CHRISTIAN  FRANCIS  McCONNELL

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MR P McCARTNEY appeared on behalf of THE APPELLANT

MR H O'BRIEN QUINN appeared on behalf of THE CROWN
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J U D G M E N T

Wednesday 12 May 2004
LORD JUSTICE WALLER: I will ask Mr Justice Davis to give the judgment of the court.
MR JUSTICE DAVIS:
1.	On 25 June 2003, in the Crown Court at Stoke‑on‑Trent, before His Honour Judge Eades and a jury, the appellant was convicted by a majority verdict of indecently assaulting a male person aged 9 years. On 22 August 2003, he was sentenced to a three year Community Rehabilitation Order. He now appeals against conviction by leave of the single judge. 
2.	The background facts are these. At approximately 1pm on 10 June 2001 a 9 year old boy called Daniel was indecently assaulted by a man who sat down beside him and put his hand down his trousers. The incident occurred in an area called “the doctor's garden” in a hospital in Cheddleton. The garden was described as a grassy area surrounded by trees and shrubs which enclosed the area. Access could only be gained through the entrances. The prosecution case in summary was that the appellant, who was an in-patient at “the Grange”, a secure unit in that hospital, indecently assaulted Daniel by putting his fingers down his underpants. Daniel's mother and a psychiatric nurse at the hospital saw the appellant, whom they both knew, in the vicinity at the relevant time. Subsequently, Daniel and him mother identified the appellant at a video identification parade held on 17 September 2002. 
3.	The defence case in summary was a straightforward denial. The appellant accepted being in the vicinity at the time, but he maintained that he never entered the doctor's garden. The issue for the jury was one of identification. 
4.	Daniel gave evidence by way of a video‑recorded interview. He said that he had been visiting his mother, who was employed at the hospital. He had been playing football with his mother, her partner and also their dog in the doctor's garden. The two adults walked away and he began to cry because his mother had left him behind. The indecent assault occurred when he sat on a low wall on the pathway leading to the doctor's garden. He screamed when the assault took place. 
5.	In interview, when asked what the man looked like, he said, “I haven't got the slightest clue”. When prompted, he described the man as being tall and aged about 21. He gave evidence that he and his mother saw the appellant in the hospital canteen some time after the incident, but prior to the identification parade, and that his mother pointed to the appellant and asked Daniel if that was the man. In cross‑examination he was adamant that the man he had picked out at the identification parade was the man who had indecently assaulted him and not the person his mother had pointed out to him. 
6.	Daniel's mother gave evidence that she had walked a short distance away from Daniel before she and her partner started calling for him. She then heard a scream. She saw the appellant moving away from the doctor's garden and hurrying towards the main entrance of the hospital. She denied that she had pointed the appellant out to her son in the canteen, as her son claimed. She stated that neither of them saw the appellant after that day. She accepted that what she had originally described as screaming was more like sobbing and crying and that she heard the sounds after she saw the appellant leaving the doctor's garden. That would be after the assault. 
7.	Her partner, Keith Grain, gave evidence that they had left Daniel behind and they began to call for him. He saw a man 20 feet away walking from the direction of the hospital. He turned away and the man disappeared. He then saw the same man walking from the path to the doctor's garden. He identified a volunteer at the subsequent identification parade. 
8.	A psychiatric nurse called Michelle Walker described how she was standing next to the vending machine when she saw the appellant run through a side entrance near the fire exit. He ran past her, nearly knocking her over. She stated that he appeared to be scared and looked over his shoulder as if he was being chased. She watched him head along a corridor towards the back of the hospital, which was not near the canteen. 
9.	At the close of the prosecution case counsel appearing for the appellant made a submission of no case to answer, but that was rejected by the judge. 
10.	The appellant then gave evidence consistent with his interview. He denied going into the doctor's garden. He said that he had not seen Daniel's mother or the psychiatric nurse, although he accepted that he knew them. His evidence was that he had left the hospital to purchase cigarettes and he re‑entered through the side exit, jogging slowly. He then turned right and stopped in the corridor for ten minutes to have a cigarette and then walked to the canteen. He said that, due to his medical condition, he often felt fearful and anxious and walked with his head down. 
11.	No complaint of any kind is made in relation to the summing‑up. It is accepted that it was fair and balanced and appropriately highlighted the potential weaknesses in the identification evidence. Nevertheless, it is said that the identification evidence was so weak and unreliable that the judge erred in rejecting the submission of no case to answer at the close of the prosecution case. 
12.	There is no doubt that there were significant problems with the identification evidence of the 9 year old complainant. He gave no detailed identification description to the police at the time. There was a delay of over one year before the identification procedure, and before that the appellant had been (on the complainant's evidence, although not the evidence of his mother) pointed out to the complainant by his mother in the hospital canteen on a previous occasion, which gave rise to the suggestion that during the identification parade he identified the man that his mother had pointed out and not the person whom he recollected had assaulted him. In addition there were various discrepancies as to the time when he said he had screamed out and what his mother actually heard and what she saw when she heard him sobbing. 
13.	However, all this the judge accepted. He agreed if the evidence of the complainant was the only evidence, it would not suffice. But there was significantly more to it than that. It was not disputed that someone had assaulted the complainant. The witness, Keith Grain, saw a man at the scene and indeed disappearing away, albeit that he could not pick out the appellant at the identification parade. The mother, who knew the appellant, had seen him leaving the garden in a hurry and moving towards the main entrance of the hospital, albeit this was at a time after she had heard her son crying or sobbing. In due course she identified the appellant at the subsequent identification parade. She had seen no one else leave the garden. The nurse, Michelle Walker, who knew the appellant, had seen him running by a side entrance to the hospital and then away from the hospital looking scared. The side entrance was no great distance away from the main entrance. All of this, it was accepted, took place in a relatively short time‑scale. 
14.	There was, therefore, an amount of evidence to support the young complainant's evidence, even if his evidence, taken entirely on its own, was unsatisfactory. Accordingly, the judge was justified in leaving the matter to the jury. Thereafter, it was for the jury properly directed, as they were in the summing‑up, to decide whether or not the appellant was guilty. 
15.	In such circumstances it cannot be said that this conviction is unsafe. The appeal is therefore dismissed.