Neutral Citation Number: [2009] EWCA Crim 1943
Case No: 2009/1268 B4 & 2009/1269 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
HH Judge Foster

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/10/2009
Before :

LORD JUSTICE STANLEY BURNTON
MR JUSTICE BUTTERFIELD
and
HH JUDGE MICHAEL BAKER QC
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Between :

	DOUGLAS GUYETT (1)		
	- and -		
	MARGARET SUSAN GUYETT (2)	Appellants 	
	- and -		
	R	Respondent	

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Miss K Davey (instructed by Nobles Solicitors) for the First Appellant
Mr C Kerr (instructed by Nobles Solicitors) for the Second Appellant
Miss I Delamere (instructed by the CPS) for the Respondent

Hearing date : July 2009
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Judgment
Lord Justice Stanley Burnton : 
Introduction 
1.	These are appeals by Douglas Guyett and Margaret Susan Guyett against their conviction on 4 February 2009 in the Crown Court at Luton before His Honour Judge Foster and a jury of offences of indecent assault and indecency with a child. On 3 April 2009 they were sentenced as follows: Susan Guyett: on counts 1 and 2 (indecent assault) and on count 3 (indecency with a child) : 3 years’ imprisonment on each concurrent (less 58 days spent on remand); Douglas Guyett, on counts 1,2 ,4 and 5	(indecent assault) and on count 3 (indecency with a child) 5 years’ imprisonment concurrent (less 58 days spent on remand). Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, they were each required to comply with the provisions of Part 2 of the Act (Notification to the police) indefinitely.
2.	At the end of the hearing of the appeals, we informed the parties that they would be dismissed for reasons that would be given in writing at a later date. These are the Court’s reasons for dismissing the appeals.
The facts and evidence
3.	The facts of these offences were relatively straightforward. The complainant Sharon Reid, whose date of birth is 5 January 1974 is the daughter of the appellant Susan Guyett and step-daughter of the appellant Douglas Guyett. The couple began a relationship in 1977 and initially Douglas would stay at Susan’s home in Hitchin at weekends and occasionally during the week. In August 1988, when the complainant was 14 years old, the couple began co-habiting and they married in 1992. The prosecution case was that both appellants indecently assaulted the complainant on several occasions when she was 11 or 12 years old. The complainant gave evidence that she would be summoned upstairs and made to watch them having sexual intercourse. She would also be forced to lie with them during sexual acts and Douglas Guyett would digitally penetrate her vagina.
4.	The defence case for each appellant was that no such sexual abuse had taken place. Thus the issue for the jury was whether they were sure that the complainant’s allegations were true.
5.	The prosecution evidence consisted principally of the testimony of the complainant, who described the abuse in detail. There was no objective evidence unequivocally supporting her allegations that was contemporaneous with the alleged offences. She said that in June 1988 she ran off to a neighbours’ house and told them she was unhappy at home. She was too afraid to tell them the truth. The neighbours (Mr and Mrs Stitt) were foster parents and decided to contact Social Services. The complainant’s mother told her that she had to tell Social Services that she had been sexually active since the age of 11. She also warned her that if she mentioned the sexual abuse to anyone she would be taken into care. The complainant tried to block out these events in her life but years later she told her boyfriend, Adrian, what had happened. In 2002 the complainant was diagnosed with a serious degenerative illness, similar to multiple sclerosis. She had to give up work, was registered blind and became wheelchair-bound. She tried to forget what had happened but in 2005 she experienced flashbacks when it all came back to her. On 23rd February 2006 she began to see a counsellor as she was experiencing panic attacks. She informed her and another counsellor that she had been sexually abused. She confronted her mother about the abuse in a telephone call on 20th May 2006. She telephoned her again on 22nd August 2006 and became angry at her mother’s dismissive attitude. She had not spoken to her since that date. On 27th July 2007 she reported matters to the police. She had kept diaries from the age of 15. Following her complaint she handed over to the officer in the case her diaries from 1989, 1990, 2006 and 2007.
6.	The complainant’s husband Adrian Reid gave evidence that she had told him of the abuse. He was unclear as to when she had first done so.
7.	 Jean Fadden was in charge of pastoral care at the secondary school attended by the complainant. She recalled a home visit which, unusually, was requested by the complainant’s mother. Her mother informed her that she was concerned about the complainant being sexually active at a young age.
8.	Gillian Chidgey, a social worker, gave evidence that a record had been made in 1988 on Social Services’ files of a home visit made by Mrs. Fadden. The complainant would have been 11 or 12 at the time.
9.	The Appellants were arrested on 19 September 2007. In interview Susan denied the allegations; Douglas made no comment but handed in a prepared statement. 
10.	Douglas Guyett gave evidence that he had a healthy sexual and physical relationship with Susan but nothing took place in front of the complainant. They had a bolt on the bedroom door and she could not have walked in on them. None of the allegations were true. 
11.	Susan gave evidence that there were no difficulties at home or school with the complainant and they were a perfectly happy family. There were no visits from Social Services or from any of her teachers. The allegations were shocking and came completely out of the blue. When the complainant told her not to contact her again, Susan thought that was the best idea since she did not want to upset her because of her illness.
12.	On behalf of the Appellants, it was pointed out that there were numerous inconsistencies in the complainant’s evidence and the information she had given to the counsellors. There were no relevant diary entries. In cross-examination the complainant agreed that she had sent countless cards to her mother and step-father over the years which were in affectionate terms, and they were produced. She claimed, however, that she paid no attention to the sentiments or verses they contained and said they were just any old card. The Appellants suggested that the accusations stemmed either from some sort of false memory or invention on her part arising from a mixture of misery about her physical illness coupled with resentment towards her mother for passing on her disease and failing to support her. There were diary entries suggesting that the complainant had been resentful of her mother’s failure to support her.
The grounds of appeal
13.	There are essentially two grounds of appeal: that the prosecution failed to disclose relevant diaries of the complainant, which, the appellants thought, would not contain any entries supportive of her allegations; and that the summing up of the evidence was partial and defective. 
Non-disclosure
14.	The complainant had supplied copies of diary entries for 1989, 1990 and 2007. Counsel for the Crown informed the Court that so far as the 1989 diary was concerned, there was no reference to her parents at all. So far as the 1990 and 2007 diary were concerned, the Crown had disclosed all references to anything either relevant to her parents or any incident. So far as medical records were concerned the Crown was given records from 1974 – 1999, and nothing had been supplied to indicate any mental illness at all from anyone. The defence knew what medication she was on since a schedule had been served. 
15.	However, the defence were not satisfied that they had received full disclosure and on 16 January 2009 applications were made on behalf of both appellants pursuant to s.8(2) of the Criminal Procedure and Investigations Act 1986 for disclosure of diary entries and medical records. It was submitted that further disclosure was particularly important in this case since, contrary to what was claimed, there were no entries referring to any abuse or alleged sexual incidents. The application related to the complainant’s diaries for 1989, 1990 and 2007, these being, as we understand from the transcript of the application, the only diaries then known to exist. Counsel for Douglas Guyett advised the court that the defence had not been given the 1989 diary, they had been given a small portion of the 1990 diary and most of the 2007 diary with several pages blanked out. They had been deprived of having contemporaneous diaries if they were still in existence. The defence should be entitled to check all the diaries, whether they contained reference to the abuse or not, since they were relevant and would assist the defence in some shape or form. This issue went to the very heart of the matter. The complainant had said that she had handed over 2 diaries (1989 and 1990) which contained her thoughts and reflections on the abuse. Since the 1989 diary was the closest thing which the complainant said still exists to the period of abuse the defence were entitled to see that to decide whether there was any material there with which to cross-examine her. They were without the full picture. Likewise the parts of the 1990 diaries which had not been provided.
16.	The Judge ruled on this application on 21 January 2009. He pointed out that disclosure had been given of any references to the parents or to the incidents, the subject matter of these proceedings, in the 3 diaries in question. The prosecution had stated in open court that there were no other references in those diaries to either of the parents or to the allegations in this case.  In the Judge’s opinion what was significant was that there were no such entries. The defence had had that admission made by the prosecution in open court and could make use of it in the course of the conduct of the trial. It was not necessary to trawl through irrelevant diary entries to pursue that line of enquiry and that line of defence. Applying the disclosure principles would not be a proper exercise of those powers. Looking specifically at the application under s.8(2) it was said that the 2007 entries in particular should be disclosed which (1) tended to suggest the complaint had an ordinary relationship with the appellants or (2) were in any way inconsistent with her allegations or (3) tended to suggest that she was mentally unwell at the time of making the complaints. These had all been addressed by the Crown. So far as the medical records were concerned the Judge had already ordered that the Crown should go a step further with the medical records not just for the time that the allegations were said to have occurred but also for the time when disclosures had been made in more recent years. With the exception of the further medical records contemporaneous to the times when these disclosures, or allegations, were first made in recent years, the application was refused. 
17.	In our judgment, the judge was right to refuse to order further disclosure. Relevant medical evidence and notes of consultations with the complainant were disclosed. What was important to the defence was the admitted absence of any reference to abuse in any disclosed diary, despite the complainant having said that the diaries she had handed over to the police contained her thoughts and feelings about her abuse. It was unnecessary for disclosure to be given of entries that did not refer to the appellants or were otherwise irrelevant. During the course of the trial, it emerged that there were diaries in addition to those that had been handed over to the police and reviewed by the prosecution. With the exception of the 2005 diary, no application was made during the course of the trial for those diaries to be reviewed by the prosecution. In any event, as already mentioned, the defence were able to make the point that the absence of any reference to abuse in any diary handed over to the police indicated that the complainant's assertion that there had been abuse to which she referred in her diaries was untrue.
18.	As indicated above, a further application for disclosure was made on 22 January 2009. It arose out of the complainant’s evidence, during the course of which she referred to her having kept a 2005 diary. The judge said that it should be reviewed by the disclosure officer and/or counsel for the prosecution, and there is no reason to believe that it was not reviewed by them on the basis that any relevant entry should be disclosed. It is not suggested that this review was not properly carried out. Nothing arises from this ruling.
19.	We add that whether any of the diaries which had not been reviewed by the prosecution contained any material helpful to the Appellants is a matter of speculation.
20.	Accordingly, we concluded that the refusal of further disclosure had not been unfair or prejudicial and did not render the verdicts unsafe.
The summing-up
21.	During the course of cross-examination of the complainant, her husband and the other witnesses called by the prosecution a number of important inconsistencies in the prosecution evidence emerged. By way of example, the complainant's initial complaint in relation to her mother had been that she had not believed her (the complainant's) allegations of abuse by her step-father. However, the allegation at trial against her mother was that she had been a party to the abuse. It is not easy to reconcile that apparent inconsistency. The complainant's greetings cards addressed to her mother and stepfather and father were devoid of any recrimination or allegation, and in her own handwriting expressed feelings of affection. The complainant said that her mother had told her to say to the social worker who visited her at the time in question that she had been having sex since she was 11, with the implication that her mother was covering up the abuse by her stepfather. If the complainant had said that to her social worker, one would have expected it to have been recorded; it was not. The complainant alleged that her stepfather had penetrated her vagina with his middle finger; yet her evidence was that she was not watching and could not see what he was doing, so that the question arose: how did she know it was his middle finger? Further, there was inconsistency between the complainant's evidence and what she had told her counsellors as to in what rooms the abuse had taken place. None of these, and other points regarded as significant by the defence, were mentioned by the judge when he first concluded his summing up and directed the jury to retire to consider their verdicts. If his directions to the jury had stopped at that point, it is conceded by the prosecution that these appeals would have succeeded. At that point, the summing up was seriously defective.
22.	However, all three counsel appreciated that the summing up had been defective, and they so submitted to the judge. Having heard their submissions, he brought the jury back and supplemented the summing up by reference to the various matters that had been referred to by the Appellants' counsel. The result was that all these points were put before the jury, and indeed were brought to their attention immediately before they finally retired.
23.	It is submitted on behalf of the Appellants that the judge displayed partiality in the first part of his summing up. The passage from page 56G to 58G, in which he said that there was no evidence coming from the Defendants that the complainant was annoyed with her mother because she was not supportive, and that there was no evidence from the Defendants that the mental state of the complainant was fragile, was unfortunate, since it suggested that there was no such evidence at all, when in fact there was objective evidence in the form of diary entries and medical notes. However, these matters too were referred to by the judge in the second part of the summing up. For example, he referred to the documentary evidence:
Now, one of the issues in this case which has been raised - and I have raised it in my summing-up - is the state of mind of Sharon at the material times.  You will look at, I have no doubt whatsoever, the diary entries. Clearly, a diary entry is a very personal entry - an entry which, as I have said, Sharon had never expected to have been photocopied for you and trawled over as they have been.  But, they are there for you to read and look at. They are part of the evidence. No doubt in assessing Sharon's state of mind and how she was thinking, those diary entries, you might feel, are important for you to consider. That deals both with her mental state generally, although, of course, in assessing her mental state, remember, we are not psychiatrists; we are not, any of us in this courtroom (counsel, me, you, or anybody else - Sharon herself even), to assess mental illness or otherwise. But, those diaries are there for you to think about and look at in terms of her state of mind - not just in terms of her state of mind, but also in terms of her feelings towards her mother, regarding any lack of care that she might have felt about her illness, about any annoyance about the genetic illness, and also the happy entries -- There are entries, I think, in there, at one stage in the 1990 diaries, about her having a happy day out in Bracknell.  So, look at them in the round in terms of assessing this case overall.  
		Remember, Sharon said, as regards the cards which are part of the exhibits, and the large bundle put in by Susan Guyett -- Remember Sharon's evidence that she did not take much notice of choosing the words on the cards.  That is how she dealt with it in cross-examination.  Whether you think that is a plausible explanation for those cards which at first blush would appear to be very loving cards sent to her mother over those years.
		Finally this: Sharon told the officer, P.C. Giles, when she  handed over the 1989 and 1990 diaries, that there would be entries in there documenting allegations of abuse. In fact, we now know that there are not any.  Again, you heard that put in evidence. You heard Sharon questioned about that. Again, you might want to think about that in terms of deciding whether that affects Sharon's credibility, and whether, indeed, anything -- indeed, any of those matters throw any reasonable doubts upon the credibility of her allegations, bearing in mind, as always, that you must be sure before you convict her, or them, of these matters.
24.	The Court does not think that the way in which the judge dealt with these matters was unfair or went beyond the scope of proper comment. Nor do the Court consider that he minimised the relevance and importance of the matters raised by the defence. The jury were ultimately well aware of the contradictions in the prosecution evidence but nonetheless convicted the Appellants. It is not for this Court to substitute its own view of the evidence for that of the jury.
25.	For these reasons, the appeals were dismissed.