Neutral Citation Number: [2009] EWCA Crim 220
 
Case No: 200801266 D1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 10th February 2009

B e f o r e:

LORD JUSTICE STANLEY BURNTON 

MR JUSTICE TREACY 
 
MRS JUSTICE SLADE DBE 
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R E G I N A 

v 

DANIEL GRIGSBY
 
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Mr R Hutchings appeared on behalf of the Appellant
Mr F Lloyd appeared on behalf of the Crown
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Judgment

1.	LORD JUSTICE STANLEY BURNTON:  This is an appeal with leave of the full court by Daniel Grigsby, a man now aged 42, from his conviction for the offence of exposure contrary to section 66(1) of the Sexual Offences Act 2003 on 17th July 2007.  He was tried at Blackfriars Crown Court by Mr Recorder Hooper and on 14th September 2007 he was given a community sentence.  
2.	The facts of the case were as follows.  On 27th November 2006 the complainant was walking with her daughter and their dog.  As they stopped to look at a house, the daughter noticed a man was following them.  They continued walking and the man then appeared in front of them.  He asked for directions and the complainant saw that he was masturbating his erect penis, which was exposed outside his tracksuit bottoms, with his left hand.  They moved past the man and the complainant telephoned the police.  Some time later, on 26th January 2007, she attended an identification parade and selected the appellant as the male she had seen exposing himself.  
3.	The issue in the case was one of identity.  The prosecution case was that the complainant had correctly identified the appellant as the man who had intentionally exposed himself.  The defence case was that her identification was in error: he had not been the man in question and there was an alibi, namely that at the time in question, 8.30 pm, he was in bed.  
4.	The sole ground of appeal is that the case should have been withdrawn from the jury at half‑time because of discrepancies between the descriptions given by the complainant as to the man in question and his actual description.  It is said that that casts such doubt on his identification by her that the case should have been withdrawn, applying the well‑known principles set out in the case of Turnbull.
5.	The complainant gave evidence that on the evening of 27th November 2006 she was walking with her daughter and their dog.  She stopped to look at a house and saw a man on the opposite side of the road who also appeared to be looking at it.  They walked on and the daughter said, "He's following us, the man is following us", and indicated that he was hiding behind a tree.  The complainant turned round and saw that he was hiding.  They quickened their pace and she held her daughter's hand.  Suddenly the man appeared about one foot in front of them and asked if they were in Dallinger Road.  He was holding his jacket open and masturbating his erect penis, outside of his tracksuit bottoms, with his left hand.  She tried to maintain eye contact but could clearly see what he was doing.  She was in a part of the road which was dark on one side, although it was not dark where he was standing.  The lighting was very good because of the houses and a nearby street lamp.  She was close to the male for less than a minute.  She tried to go round him but he persisted in asking for directions.  They managed to pass him and make their way to a busier road from where she telephoned the police on her mobile phone.  As she was using the phone her daughter turned round to see the man get into a car.  The complainant did not see him get into it but saw the front of a silver car with its lights off, reversing. 
6.	In evidence the complainant described the male as "quite short", approximately 5 foot 5 inches, and aged between 35 and 45.  His hair was receding and quite long with a centre parting.  He was slim and wearing a tracksuit top and bottoms.  The hair was about to his jaw line.  When he was masturbating, he was standing directly in front of her.  
7.	The complainant had selected the appellant from a photographic identification parade on 26th January 2007, albeit some while after the incident in question.  She said that she was surprised to see the person on the parade as she had not expected to see him, but was 99 per cent sure that she had identified the correct person.  
8.	In cross‑examination she said that when she rang the police the male was walking away.  By the time she was connected he would have been in the car.  She was not used to dialing 999 and accepted that she might have said that he was wearing jeans.  She told the police in the telephone call that he was aged about 35 years and that he had receding hair.  She could not remember saying that he had fair hair.
9.	Two female police officers took a statement from the complainant when she was still in the street.  She accepted that the description she gave to them was that he was a "white male, 35 years old" and with thinning hair.  He was wearing blue/black jogging bottoms and a black tracksuit top.  She later went to the police station and her witness statement was taken by DC Daly.  It took about an hour and he wrote out the statement by hand.  In the statement she described the male as white, 35 years of age, wide face, eyes wide apart, receding hairline, fair hair, centre parting and about 5 foot 6 to five foot 7.  He was of slim build, with a dark tracksuit top which opened at the front and dark, elasticised tracksuit bottoms.  He was approximately the same height as her.  She could not recall if she described the car as an Astra.  It was to see whether it was a people carrier as it was reversing round a corner.  It took her about ten minutes to walk to the area from her home.  At that time of year it was dark by 8.30 pm, but the street lighting was on.  She knew the road very well and confirmed the area was shown in a set of photographs handed to her.  There were street lights on the opposite side of the road which she described as "beaming across".  She was only just beyond the street lights.  When the man spoke to her he asked the whereabouts of a road she did not recognise.  She was absolutely sure that she had recognised the correct person and took the matter very seriously.  
10.	In re‑examination she referred to the photographs of the area and said that the street light was on the other side of the road.  When she looked at the car reversing it was about the length of the courtroom away.  She did not know whether the car was an estate or a people carrier.  She had not seen the male she identified anywhere else.  When he was standing in front of her she did not know if he was going to rape her.  She was very frightened when she phoned the police.  Her daughter was with her and he was very close.  
11.	There is evidence concerning the identification parade which is not material to the issue.
12.	As we have said, the only point in this case arises from the discrepancy between the descriptions given by the complainant of the man in question and his actual appearance.  The most important discrepancies were as to his height, a significant difference, he is taller than her and she described him as someone who was not and gave heights; his hair, which she described as receding; and his clothing, at some point she said that he had been wearing jeans and at other times said he was wearing tracksuit bottoms.  The descriptions of the man had changed by the time she was in court, but of course by that time she had seen him in the dock.
13.	This was not a case of a so‑called "fleeting glance"; this was a case where, according to the evidence of the complainant, she had looked carefully at the face of the man in question and tried to remember his identity.  The Recorder, in ruling that the case should go to the jury, correctly addressed all the discrepancies which were relied upon.  He drew a distinction, with which we sympathise, between a poor description and a poor ability to observe, it being not unknown for witnesses to have difficulty in describing a person whom they subsequently correctly identify.  
14.	There were three matters which went but a small way to support the identification of the appellant.  The first was that he does in fact have a silver car; the second was a matter of relatively little cogency, that he lived within the area; and the third was his alibi that he was in bed at the relatively unusual time of 8.30.  None of those is relied upon by the prosecution as being of great cogency.  
15.	One is therefore left with the evidence of the identification and the evidence of the significant discrepancies.  Was this a case, therefore, which the learned Recorder was bound to have withdrawn from the jury?  In our judgment, not.  This, as we have already said, was not a case of a fleeting glance; this was a case where the man in question had been seen by the witness under what she described as good lighting and for some significant time.  There were weaknesses in her evidence which were relied upon at the half‑time stage and are relied upon before us, but nonetheless in our judgment this was a case which, in all the circumstances, the judge was entitled to leave to the jury.  The jury then heard his evidence and that of his wife in support of the alibi.  They rejected that evidence.  In our judgment, he was properly convicted and the appeal is dismissed.