Neutral Citation No [2012] NICA 43	Ref:     	MOR8616	
			
Judgment: approved by the Court for handing down	Delivered:	12/10/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_______
THE QUEEN
-v- 
RL
_______
Before: Morgan LCJ, Higgins LJ and Girvan LJ
_______
MORGAN LCJ (giving the judgment of the court)
[1]	The applicant was convicted at Belfast Crown Court on 17 November 2011 by Her Honour Judge Smyth, sitting with a jury, of three counts of sexual activity by an adult with a child between 13 and 16 years contrary to Article 16(1) of the Sexual Offences (NI) Order 2004 and one count of sexual activity with a child under 13 years contrary to Article 14 of the 2004 Order. The offences involved three victims. The applicant was sentenced to 18 months imprisonment (8 months detention and 10 months licence) on each count concurrently on 20 January 2012 and various appropriate ancillary orders were made. The applicant renews his application for leave which was refused by the single judge.

Background

[2] 	The prosecution case was that the applicant sexually assaulted three girls on 28 and 29 May 2009; MM, then aged 12 (count 1), SD, then aged 14 (count 2) and NG, then aged 13 (counts 3 and 4).

[3] 	NG’s evidence was that on 28 May 2009 she left home at 8.20am to go to school and on her way she stopped at ‘Michael’s’ shop, Belfast to get something for her break. As she came out of the shop she saw a blue car. She noticed a male, she described him as being in his early 20s, around 5ft 6, middle built, dirty fair hair, short and spiked in a V shape. When she first noticed him she said he was about half a metre away, coming from the blue car. She said she moved to the left and he was moving in the same direction. She said she felt his fingertips touching the top of her vagina over her pinafore. She said he then put his hand down and moved away and he went into the shop. He said to her, ‘Are you all right love?’ When she got to school she told her tutor, Ms McA, and later she told her mum and dad.

[4] 	NG stated that on 29 May the blue car was outside Michael’s shop again. She said that the same male who had touched her the day before was there and he was about half a metre from her again as she was moving out of the shop. She said they came to within centimetres of each other and that his fingertips made contact with the top of her vagina in exactly the same way as had happened the previous day. She saw her neighbour, Mr A, 4 or 5 metres from her on the other side of the road. She said she was crying and she told Mr A that the man with the blue Audi had touched her twice in two days. She knew it wasn’t accidental. She stated she saw the man getting into the car. She then said that Mr A stopped at the defendant’s car and they had a conversation. After that she went to her parents’ house with Mr A and she and her father went to RL’s house after they saw the blue Audi again. She said that she told her father that the man had touched her. She said she didn’t remember what the man was wearing on Thursday 28 May but that on Friday 29 May he was wearing a blue or black and white striped jumper and jeans. NG did not describe the specific details of the touching either to Mr A, her father or the teachers.

[5] 	MM stated that she stopped at the mini market, Belfast on her way to school on 28 May, getting there at about 8.05am. She said she saw a couple of cars and a man in a blue car attracted her attention because she had seen him watching her, a couple of days previously. She said the car was small, dark blue, had four doors and was not really clean. She said the man approached the mini market as she was leaving it. She said she moved to her right and he moved in the same direction. She said she couldn’t get past him. She then moved to the left and he did the same. She changed direction three times to get out of his way. She said his right arm made contact with her left breast and rubbed it and she demonstrated how that happened. He then said ‘sorry’ in a Belfast accent. He then reached down and touched her on the vagina and then said sorry. She said he was aged 21 – 25. She said his hair was dark, black. In evidence she said it was spikey but she had not used that description before. She said he was 6ft but that she was shorter than most of her friends and she couldn’t remember what his build was. When she went into school she told a teacher, Ms C, who contacted the police.

[6] 	SD went to the mini market on 28 May and left the shop at about 8.20am. She did not know who the applicant was at the time but stated that the man whom she described in evidence as the applicant got out of the car and walked towards the door of the shop. She stopped because she had no choice. She said she had seen the man a couple of days before. He came from a blue car which had four doors, it was shiny and new looking. She said he was medium height, skinny, early 20s, grey navy hooded jumper and working trousers with brown short hair. She said he put his hand on her chest and said ‘sorry love’ in a Belfast accent. He then put his hand on her stomach. She left the shop and when she went into school she spoke to a teacher, Ms C. SD and her father drove to school on 29 May. In evidence she said that she had seen the man in a car on the way to school and provided details of part of the car VRM that she was adamant was the VRM of the man who had assaulted her on 28 May. These details did not match the applicant’s car.

[7]	NG said that she did not know either MM or SD. They went to different schools. MM and SD attended the same school but they were not friends and were not in the same year group. MM said, however, that she knew NG. It was pointed out to the jury that neither MM nor SD picked the applicant out at a police identification procedure.

[8] 	The applicant said he had no specific recollection about 28 May 2009. He was first asked about it on 18 June 2009. In relation to count 4 which occurred on 29 May, he said he would have stopped at Michael’s shop and parked outside the shop. He said he recalled meeting NG, although he didn’t know her name at the time, as she was coming from the shop and he was going into the shop. He said that he could hear that she was upset although he couldn’t see that she was upset. He said there was no contact between them of any kind and he said nothing to her. He said he was wearing a polo shirt and a fleece with a business logo and so he said that what he was wearing was different to the description NG gave. He said he stopped the car and spoke to Mr A and asked was everything ok? He stated Mr A replied, ‘yeah, everything’s dead on’. The Judge noted that Mr A’s version of this conversation differed. Mr A said the applicant stopped the car and asked, ‘What’s wrong with her? Is she all right? I just bumped into her in the shop and she threw a skitso.’ Mr A said that his reply was that he didn’t know what was going on. He said in evidence that the applicant appeared agitated although he did not say this in his statement. Mr A said that while he was talking to NG some schoolgirls in different uniforms called over to NG and she said that she had been attacked again. NG did not recollect any such conversation.

[9] 	The applicant stated that shortly afterwards Mr G and NG arrived at his home. He stated that Mr G accused him of touching his daughter’s leg. The Judge noted that Mr G said he made it clear that the allegation was about touching his daughter’s body. The applicant’s mother said that NG also said that it was her leg that was touched. The Judge noted the applicant attended the police station voluntarily and that he maintained his innocence throughout police interviews.

The reopening of the Crown case

[10] 	The Crown case was opened on the basis that the prosecution would rely on the similarities between the complaints of all three girls being mutually supportive of the Crown case on each count. The questioning of witnesses was directed to this issue on both sides. The learned trial judge raised with the prosecution the need to make a bad character application if the Crown proposed to rely on cross admissibility but no such application was made before the Crown closed its case on Friday 11 November 2011. At that stage the defence submitted that there was no case to answer on counts 1 and 2 as any bad character evidence on counts 3 and 4 was not admissible in relation to counts 1 and 2. In the absence of such evidence there was no evidence to identify the applicant as the person who carried out the alleged attacks on the first 2 counts.

[11] 	Article 17(2) of the Criminal Justice (Northern Ireland) Order 2004 deals with the issue of cross admissibility in a multi count indictment.

“Where a defendant is charged with two or more offences in the same criminal proceedings, this Part (except Article 6(3)) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.”

The effect of this is that an application to introduce bad character evidence arising from the evidence on any other count must be made if it is to be admitted. This is acknowledged in R v Chopra [2006] EWCA Crim 2133. The applicant objected to the prosecution case being reopened for that purpose. The applicant had made the application for a direction but no evidence had yet been called on the applicant’s behalf.

[12] 	This court recently looked at this issue in a slightly different context in Chief Constable v Uprichard [2012] NICA 10 and set out some of the relevant case law.

“[6] 	In R v Francis (1990) 91 Cr App R 271 a witness to a robbery participated in an identification parade and picked out the person standing at position 20. At the close of the prosecution case the appellant applied for a direction as there was no evidence called to establish that he was the person standing at that position. The prosecution did not understand the appellant’s position at the parade to be in dispute and applied to call further evidence of that fact. They were permitted to do so and the appellant was convicted. On appeal it was argued that the prosecution could only re-open their case in only two circumstances, first where something has arisen ex improviso and secondly where the matter is a mere formality as distinct from a central issue in the case. The court rejected that submission and held that the discretion was wider but should only be exercised outside those exceptions on the rarest of occasions. The appeal was dismissed.

[7] 	The relevant case law was examined extensively in Jolly v DPP (QBD Divisional Court 31 March 2000). That was a drink driving case in which the prosecution relied upon a read-out from a computerised machine. At the end of the case the appellant applied to have the case dismissed on the basis that there was no evidence that the machine was working correctly as required by Section 69 of PACE. The Magistrate allowed the prosecution to recall the forensic scientist and convicted the appellant. The Divisional Court accepted that the discretion should be sparingly exercised but doubted whether it assisted to speak in terms of exceptional circumstances. The court should look carefully at the interests of justice overall and in particular at the risk of any prejudice whatsoever to the defendant. The appeal was dismissed.

[8]	Jolly has been consistently followed in Divisional Court decisions since then. In Tuck v Vehicle Inspectorate [2004] EWHC 728 (Admin) the court stated that the overall interests of justice include giving effect to the requirement that a prosecution should not fail through inefficiency, carelessness or oversight. If a defendant stood by watching a point develop without any hint of a challenge which might alert the prosecution to their failure to comply strictly with the formal proofs he could hardly complain if as a result the discretion was exercised to secure justice rather than allow an unmeritorious acquittal (see Lesson v DPP [2000] RTR 385).”

[13] 	In her ruling the learned trial judge based her determination on the interests of justice. She noted that the issues relating to the bad character had been fully aired in the course of the trial and that it would not be in the interests of justice to refuse the application. We can find no error in her approach. 

The application for a direction should have succeeded on counts 1 and 2

[14] 	There was no identification evidence of the applicant by either of the victims on these counts despite the fact that each had previously observed their attacker. Neither girl picked him out on VIPER identification. Their descriptions were inconsistent although it was accepted for the applicant that the evidence of the complainants provided strong circumstantial evidence that the offences were carried out by the same person. The victims had provided a VRM for their attacker which did not correspond with the applicant’s VRM.

[15] 	The applicant submitted that the evidence on counts 1 and 2 was weak and that bad character evidence on counts 3 and 4 should not be used to bolster an otherwise weak case (see R v Hanson [2005] EWCA Crim 824 at paragraph 18). The bad character evidence in this case was neither trivial nor stale. The jury were entitled to take into account the similarities in their accounts; all were in school uniform, all were of a similar age, each alleged incident occurred in the vicinity of a shop doorway, all referred to the connection of the man to a blue car, all said that the offender spoke to them after the incident and the nature of the physical contact was similar. 

[16] 	The test in a circumstantial case is that set out in R v P [2004] 2 Cr App R 6 CA.

“Where the prosecution case depends entirely on circumstantial evidence, the correct approach is to look at the evidence in the round and ask whether, looking at all the evidence and treating it with appropriate care and scrutiny, there is a case on which a properly directed jury could convict.”

We are satisfied that the learned trial judge was correct to conclude that there were sufficient potentially striking similarities to justify the case being left to the jury.

The investigative failures

[17] 	The applicant argues that the prosecution should have been stayed by reason of a number of alleged failures in the investigative process. The law relating to staying proceedings for abuse of process was set out by Carswell LCJ in Director of Public Prosecutions for Northern Ireland’s Application [1999] NI 106 when he stated: 

“Our conclusion from our examination of these authorities is that there are only two main strands or categories of cases of abuse of process: 

(a) 	those where the court concludes that because of delay or some factor such as manipulation of the prosecution process the fairness of the trial will or may be adversely affected (we regard these words, which were used in Re Molloy's Application, as the appropriate formulation of the criterion);  

(b) 	those, like Ex parte Bennett, where by reason of some antecedent matters the court concludes that although the defendant could receive a fair trial it would be an abuse of process to put him on trial at all. 

We do not consider that there is a third category of generalised unfairness …” 

He went on to say:

“The courts have constantly been enjoined to bear several factors in mind when considering an application for a stay: 

1. 	The jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons: Ex parte Bennett [1994] 1 AC 42 at page 74, per Lord Lowry. 

2. 	The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct: ibid. 

3. 	The element of possible prejudice may depend on the nature of the issues and the evidence against the defendant. If it is a strong case, and a fortiori if he has admitted the offences, there may be little or no prejudice: see Ex parte Brooks (1984) 80 Cr App R 164 at page 169, per Sir Roger Ormrod.”

[18] 	The role of the court in dealing with possible prejudice is addressed in R v Ali [2007] EWCA Crim 691 at paragraphs 29 and 30.

“29. 	Attorney General's Reference (No. 2 of 2001) was concerned with the remedy for a breach of article 6(1) rather than the means a court might adopt to avoid unfairness in the prosecution of a delayed trial. The authorities are replete with examples of cases where evidence has been lost or destroyed but nevertheless this court has ruled that the trial judge was correct in refusing to stay the trial. This court has repeatedly emphasised that, during the course of a trial, there are processes, such as the power to exclude evidence under s.78 of the Police and Criminal Evidence Act, 1984, which may provide sufficient protection to a defendant against prejudice caused by delay. That is the second principle identified by Brooke LJ in R (Ebrahim v Feltham Magistrates Court) [2001] 2 Cr App R 23 at para 74). In that case a video tape, which might have showed images inside a store, where an alleged assault was alleged to have taken place was no longer available. The loss of such a recording is not unusual in cases of delay. Loss or destruction of the video evidence did not lead to a stay in such cases as Medway [2000] Crim LR 415, Dobson [2001] EWCA Crim 1601 or in the other case decided by the Divisional Court at the same time as Ebrahim (Mouat v DPP). The mere fact that missing material might have assisted the defence will not necessarily lead to a stay.

30. 	But in considering such powers to alleviate prejudice, Brooke LJ (at para 27) emphasised the need for sufficiently credible evidence, apart from the missing evidence, leaving the defence to exploit the gaps left by the missing evidence. The rationale for refusing a stay is the existence of credible evidence, itself untainted by what has gone missing….”

[19] 	The applicant relied on a number of failures to take statements from those to whom complaints had first been made. In relation to NG statements were taken expeditiously from Mr A and her father. Although a statement was not taken from Ms McA until 20 months later the learned trial judge noted that she was able to provide a full account. The child protection officer at the school did not make a statement but her contemporaneous notes were available. In this case there was clearly no prejudice never mind the serious prejudice that would or might adversely affect the fairness of the trial.

[20] 	MM and SD were both interviewed by Ms C the Acting Head of Pastoral Care on the morning of 28 May 2009. The notes compiled by her at that time were provided to the applicant. Those notes included a fragment of a VRM which SD had attributed to the offender. It is agreed that the fragment did not correspond with the VRM of the applicant’s blue Audi vehicle. Although no attempt was made to check this fragment with the DVLNI the police officer did carry out a check on the police system which did not throw up any useful information.
[21] 	In her evidence on 10 November 2011 under cross examination SD asserted that on 29 May 2009 she was being taken to school in her father’s car when she saw the offender sitting in a car and took down the VRM on a piece of paper. She said that she gave the piece of paper to Ms C at the school. During the trial Ms C attended at court and indicated to both prosecution and defence that she did not recollect ever receiving any such piece of paper. If she had one might have expected that she would have behaved in the same careful way that she had the previous morning. This account had never been given to police before it emerged in cross examination and it also appears that SD’s father who was in the car with her was not aware of this happening as he would undoubtedly have contacted the police with the information. We do not accept therefore that the evidence demonstrates any investigative failure in relation to this. It was for the jury to decide whether this happened and if not how it affected her credibility. That issue was there to be developed before the jury.

[22] 	The applicant placed considerable significance on the fact that there was provision for CCTV covering the interior of the mini market, the premises at the entrance to which MM and SD said the first 2 assaults had taken place. The investigating officer attended at those premises on 3 June 2009. He made a note in which he recorded that the manager told him that footage may be available from CCTV but the manager was not in a position to locate it on that day. The applicant was interviewed on 18 June 2009. He indicated that he may have been in the mini market on the day in question but could not remember. He invited the police to obtain the CCTV as he believed this would be to his advantage. The officer did not return until 10 July at which stage the manager told him that the CCTV had not been working in the weeks leading up to 28 May and no footage was available.

[23] 	The applicant’s solicitors pursued this with the PPS and by letter dated 1 November 2011 the PPS stated that the footage had been deleted before it could be seized. The officer in charge was cross examined on this and was adamant that the PPS account was erroneous. Although it was clear that in SD’s case the allegation was that the offender entered the Mini Market after the offence it was not clear that the offender did so in the case of MM. The prosecution submit, therefore, that even if the CCTV showed the applicant this could be explained by his admission that he might have been in the shop that morning.

[24] 	We accept that there is an obligation on police under the relevant Code of Practice to pursue all reasonable lines of enquiry whether these point towards or away from the suspect. We do not accept, however, that the failure to seize CCTV on its own is likely to affect the ability of an accused person to have a fair trial. If there had been no CCTV in the shop the trial would still have been fair. Where there has been a failure to seize CCTV there is an onus on the trial judge to explain how that may have disadvantaged the accused and to ensure that any such disadvantage is taken into account in his favour. R v Haddock [2005] NICC 15 was a case very much on its own facts and is not authority for any wider principle or proposition about serious prejudice arising from the absence of CCTV.

[25] 	The learned trial judge decided on the evidence that the CCTV would not in fact have provided any footage of the relevant day. She dismissed the application on that basis. We consider that even if there had been footage which had been deleted this was a case where the serious prejudice necessary to adversely affect the fairness of the trial was not present. It is apparent from the directions of the learned trial judge that she was perfectly able to draw to the attention of the jury how the absence of this material may have disadvantaged the applicant and ensured that this was properly taken into account in his favour.

The direction on cross admissibility

[26] 	The applicant accepts that the striking similarities in the circumstances of these allegations justifies the determination that these counts should be cross admissible with a view to demonstrating a propensity on the part of the applicant to carry out assaults of this kind on young schoolgirls. It is submitted correctly that where there is any evidence of collusion or innocent contamination in such a case the jury need a careful direction (see R v Lamb [2007] EWCA Crim 1766).

[27]	It is accepted by the applicant that there was no evidence of collusion. MM and SD attended the same school but were in different years and had different friends. Each made their complaints to Ms C but there was no evidence that they met beforehand or acted in any way in concert. The only element of the evidence drawn to our attention in respect of these victims was an assertion that MM described the assailant as having spiky hair in her evidence, a description which she had never used before but which was used by NG.

[28] 	NG was attacked at different premises and attended a different school. She did not know either of the other complainants. She reported the incident on 28 May to her teacher early that morning. There was no possibility of contamination before that. The following morning Mr A said that after he had encountered her crying three girls in different school uniforms shouted over to her and she shouted back that she had been attacked again. She denied that she had done this. There is no suggestion that the other girls were in any way connected to the other complainants.

[29] We accept that where there is evidence raising a possibility of innocent contamination or material giving rise to a risk of collusion in cases in which the evidence of various complainants is cross admissible a direction is necessary on these issues (see N(H) v R [2011] EWCA Crim 730). In this case the issue was not raised during the trial or in the requisitions. That confirms our view that this was a case in which there was no evidential base for a case of innocent contamination.

Conclusion

[30] 	We do not consider that any of the grounds of appeal have been made out. We have no lurking doubt about the safety of the conviction and accordingly dismiss the appeal.