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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> K, R. v [2004] EWCA Crim 1365 (17 May 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/1365.html Cite as: [2004] EWCA Crim 1365 |
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CRIMINAL DIVISION
The Strand London WC2A 2LL Monday 17 May 2004 |
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B e f o r e :
MR JUSTICE JACK
and
MR JUSTICE DAVID CLARKE
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R E G I N A | ||
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Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
MRS S FERRIER appeared on behalf of THE CROWN
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Crown Copyright ©
Monday 17 May 2004
LORD JUSTICE WALLER:
"The defendant was cross-examined about the marriage to MA [the mother] on 25th October 2002 at Cardiff Register Office. You know where it is in Park Place. He told a porky, a lie, to the Registrar of Marriages or that person's agent, because he said he had never been married before. My advice to you about that, members of the jury, is this: do not attach much significance to that, bearing in mind the different culture and religious ethos from which he comes. He gave his explanation. He is allowed to have up to four wives. He had only marred once in Pakistan. It was a marriage of convenience. He has children there. Really, in all conscience -- I hope I am putting his case as fairly as I can -- effectively he was saying to you this: 'It really wasn't an insult to my own conscience to tell that lie because I was only marrying one person in this country and it didn't conflict with my own religious principles'. That is my advice to you about that. It is far better for you in this case, members of the jury, to concentrate and concentrate very hard on the other and much more important alleged lie, which is, members of the jury, in relation to the bite."
He then turned to other matters. We do not think the Recorder's ruling can be impugned. He was entitled to allow the Crown to ask these question; but even if that be wrong, the Recorder's direction to the jury was as clear as it could be that neither the lie nor this aspect of the case should have any significance in the context of the case. This is an aspect which formed the subject of ground 1 of Mr Leathley's appeal to this court, but in our view there is no substance in it.
".... your verdict upon count 1 might have some bearing, would it not, upon your verdicts in relation to counts 2 and 3 because, for instance, were you to find that the defendant was actually lying, but lying to protect MA in respect of the bite covered by count 1, that might have some bearing on your deliberations in relation to counts 2 and 3.
Conversely, were you to decide that what he admitted was in fact true, equally, members of the jury, that would be something you could, if you so wished, use to bolster, if you felt it necessary, the prosecution's case upon count 2 and/or count 3."
There seems to be little doubt that the decision to prosecute the appellant (as opposed to MA, for example) was based on the fact that he had admitted the bite (the subject of count 1). He was also the subject of the allegation such as it was on count 4, and thus when it came to counts 2 and 3, the Crown were saying, "This is a person who has inflicted injury on this child and thus when you come to look at counts 2 and 3, you should start from the point of view that there is that evidence against him as opposed to anybody else".
"I recall this male [the appellant] saying something which I cannot remember what he said. I do remember that he spoke broken English.
The female, who I believed was the mother of the unconscious child kept saying, 'What's happening, what's happening?' She started to become very concerned and was panicking.
I recall Steve asking the male what had happened to the child.
I recall the male saying something about the child drinking milk and then either collapsing on the floor or falling on the floor.
Martin then asked the male to pick up the child from the floor and carry her downstairs to the ambulance. The male proceeded to do this."
The Crown were also entitled to rely on count 1, the bite.
"At a later stage of this summing-up, members of the jury, I shall refer in full to the defendant's evidence."
Unfortunately, he never returned to do that.
(The court conferred)