Neutral Citation Number:
[2015] EWCA Crim 1630
Case No.
201501985 B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 22nd September 2015
B e f o r e
:
LORD JUSTICE LLOYD JONES
MR JUSTICE BLAKE
MR JUSTICE HADDON-CAVE
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R E G I N A
v
J VG
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Mr J Arsenio
appeared on behalf of the
Appellant
Mr J Gadsden
appeared on behalf of the
Crown
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J U D G M E N T
1.
LORD JUSTICE LLOYD JONES: On 27th March 2015, in the Crown Court at Kingston before Recorder Featherby, the appellant was convicted of two counts of assault of a child under the age of 13 by penetration (counts 3 and 7) and two counts of causing or inciting a child under the age of 13 to engage in sexual activity (counts 4 and 8). On 1st May 2015, before the same judge, he was sentenced as follows: on count 3, a term of four years' imprisonment; on count 4, a term of two years' imprisonment concurrent; on count 7, a term of five years' imprisonment, that sentence to be consecutive to the other terms; and on count 8, a sentence of three and a half years concurrent to the other terms. So the total sentence was one of nine years' imprisonment.
2.
Having been convicted of an offence listed in schedule 3 to the Sexual Offences Act 2003, the appellant is required to comply with the provisions of Part 2 of that Act indefinitely. Having been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the appellant is included in the relevant list by the Independent Safeguarding Authority. In addition, the judge made a Sexual Offences Prevention Order.
3.
Counts 5, 6, 12, 13, 14 and 15 were ordered to lie on the file against him on the usual terms.
4.
He now appeals against conviction by leave of the single judge, who limited leave to grounds 1 and 2. We have been assisted by the submissions of Mr Arsenio, who has also renewed his application for leave to appeal against conviction on ground 3.
5.
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless it is waived or lifted under section 3 of the Act. We have invited submissions today and no submissions have been made to us.
6.
The appellant originally faced an indictment of 15 counts. He was tried in October 2013 and was acquitted of the three counts of rape and two counts of sexual assault. The jury were unable to agree in respect of the other counts. At the re-trial the prosecution proceeded with four counts only. The remaining counts were left on the file on the usual terms.
7.
All of the counts were based on allegations of the same complainant. I shall refer to her as AB".
8.
Counts 1 and 2 of the trial indictment covered the first incident, which she stated occurred in 2005 or 2006, when the complainant had been five to six years old. Counts 3 and 4 mirrored the allegations but covered the period when the complainant was aged six to 12 years old, that is 2005 to 2011. She essentially reported that the appellant had over those periods of time repeatedly digitally penetrated her vagina and had repeatedly made her masturbate him.
9.
Her first report was made to a general practitioner in January 2013, when she was then 13 years old. She had attended the police station and was interviewed on 17th January 2013 and on a second occasion on 2nd March. After the first interview, and after the tape machine had been turned off, she informed the officer that there was a stain of blood on the appellant's mattress from when she had been menstruating on one occasion.
10.
The appellant was arrested and interviewed. He made no comment.
11.
The prosecution case was that the complainant was telling the truth and that what she said had happened. The defence case was that the complainant was lying and that nothing remotely improper had ever occurred as claimed.
12.
On behalf of the prosecution, AB gave her evidence in chief via her Achieving Best Evidence Interview and she was cross-examined in the usual way over a video link. At the date of her evidence she was 15 years of age.
13.
Her evidence was that when she visited the appellant from an early age they would sleep naked in the same bed. On every Saturday night in bed, and on Sunday morning in front of the fire, the appellant would insert his fingers into her vagina, touch her breasts and play with her nipples. He also guided her hand to rub his penis and masturbate him. On approximately five occasions this led to ejaculation. She said that he used words such as "bitch", "cunt" and "fuck" when this was happening. This happened repeatedly from when she was aged six to when the appellant had heart surgery in 2012, when she was 13 years old.
14.
On one occasion when they had been naked in bed she had been menstruating and blood had stained the appellant's mattress. She said that she had on occasion helped him change his sheets and turn the mattress. She said that he had been unable to do it on his own because of his age.
15.
She said that she did find the appellant controlling but that this was not a motive to lie and she denied that she was lying.
16.
She accepted that she had sent affectionate Christmas and birthday cards to the appellant, but she said that her mother had made her write what she had written. When she had refused to sign the Christmas card at Christmas 2012, her mother had forged her signature.
17.
The complainant's mother gave evidence that she had asked the appellant to have the children of a weekend. She agreed that her children did argue and bicker between themselves. She remembered a conversation with the appellant when he had told her that the complainant had not wanted to sleep in the bedroom on her own and she told the complainant that she must. The complainant, she said, had refused to sign the Christmas card for the appellant in 2012. The complainant would not say why. She had signed the card herself on behalf of her daughter, fearing that otherwise the appellant would be very upset.
18.
A statement of Dr Chill was read. The complainant had attended on Dr Chill, a general practitioner, with her mother on 2nd January 2013, reporting low mood and sadness. She reported avoiding the appellant after an incident a year previously which had not been sexual.
19.
There was then read a statement from Dr Rayman, who attended the complainant and her mother on 9th January. He asked the mother to leave and the complainant then reported that the appellant had been sexually abusing her since she had been aged about four years old. She reported that the appellant had digitally penetrated her and had her touch his penis when she stayed with him on a Saturday night. It had stopped a year previously following an operation which had meant that the appellant could no longer look after her. As a result of this report the police and social services were notified.
20.
There was evidence of the examination of the mattress on the appellant's bed, which bore two blue stains which tested positive for blood. The area of the mattress had been cut and was submitted for laboratory examination. There was evidence from a forensic scientist who had conducted tests on the mattress sections and had compared the blood found to the DNA of the complainant, with which it matched.
21.
The appellant gave evidence in his defence that initially AB and her brother had stayed with him on Saturday nights to give their mother a break. It had been at their mother's request. AB had then been six years old. However, the siblings had constantly argued and he had found it too much. He had suggested that he have them separately, and as a result the complainant visited every three weeks initially, but that had then decreased over the years. The complainant's mother would telephone to make arrangements and the complainant had never seemed reluctant to come.
22.
There had been two occasions when he had shared a bed with the complainant and they were when she was maybe six years old. Her father had left and had just started visiting. She had been nervous and had been scared of the dark and of the room. They had worn pyjamas on both occasions. He had spoken to his daughter, who had told the complainant that she must stay in her own bed.
23.
He said that he had never seen the complainant naked, nor had she seen him naked. He had supplied the complainant with a taste of wine once when she was eight or nine years old and she had not liked it. She had not consumed half a bottle and had never been intoxicated. He had never digitally penetrated the complainant's vagina or touched her sexually. She had never masturbated him. He said that he did not swear. His evidence was that these things which were alleged against him had never happened.
24.
He confirmed that on occasion when she visited, her mother had said that she was menstruating. He was surprised because she was only ten years old. He had left the complainant at his address, and when he had come back at about 6.30 to 7 that evening she was asleep, fully clothed, on his bed. There had been laundry on one of the beds in her usual room. He tried to rouse her, but she told him to leave her alone and he had returned downstairs to eat. When he retired to bed, he had gone to the other bedroom.
25.
On the Sunday he had noticed that there was blood on the mattress. He thought it looked unsightly and unhygienic and tried to clean it, but it had remained and so he put ink over it and flipped the mattress over. The complainant had been wearing the same clothes on the following day but he had not seen any blood on them. He had not told the complainant that she had bled on to his bed. On her next visit, some weeks later, he had shown her the ink and told her that she had stained the mattress.
26.
He could not explain why he had not answered questions at the police interview. He said he had been advised not to do so by his solicitor. He said he was shocked and appalled at the allegations being made. He had not wanted to be misunderstood. He also said that he had been sexually dysfunctional for some years, since the last two years of his marriage. He had no sexual desire or feelings. He had had no relationships and he could not attain an erection.
27.
His evidence was that the Christmas and birthday cards from the complainant showed entirely appropriate affection from the complainant towards him.
28.
He could give no reason for the complainant to tell lies. He said he had never been horrid to her and they had never had any arguments. He wondered whether she missed her father or a father figure.
29.
There was character evidence called in his support from his son and his former wife.
30.
The single judge gave leave to appeal on two grounds.
31.
The first ground is that the judge erred when he gave a defective and diluted good character direction regarding the appellant.
32.
Here, Mr Arsenio says that although the judge initially gave an adequate direction, he later diluted it, rendering it defective. The initial direction was entirely conventional: the judge reminded the jury of the appellant's good character, that he had no convictions and that witnesses had given evidence of his positive qualities. He directed the jury that they should take this into account in relation to his credibility and in relation to the likelihood that he had committed these offences. The judge gave both limbs of the direction. If it had ended there, it seems to us, and indeed Mr Arsenio accepts, no objection could be made to the direction. However, first, objection is taken to the further statement by the judge:
i.
"You should bear in mind however that the prosecution's case is that these alleged crimes took place over a number of years and were concealed."
33.
It is said that this provides an explanation as to why the apparent good character existed, and by doing so undermines the direction.
34.
In our view, this additional statement was unfortunate. However, the sentence complained of comes immediately after this sentence:
i.
"You are entitled to take into account everything you have heard about the defendant, including his age and what his son and former wife have said about him."
35.
When the sentence to which objection is made is read in that context, it simply makes the point that those witnesses would have been unaware of what the complainant says was taking place at a time when they considered his character to be a good character.
36.
Furthermore, it seems to us, a measure of balance is restored by the words which immediately follow:
i.
"Having said that, considering what you know about the defendant you may think he is entitled to ask you to give weight to his previous good character when you are deciding whether the prosecution have satisfied you that he is guilty."
37.
However, objection is made to those words on other grounds. The judge used the words "you may think that he is entitled to ask you to give weight to his previous good character", and it is said that the inclusion of the word "previous" is "deplorable, wrong and misleading".
38.
On the face of it, it may appear that the use of the word "previous" inappropriately qualifies the direction. However, we do not understand the judge to be suggesting by the use of the word "previous" that the appellant committed the offences with which he is charged. The word "previous" is used three times in the direction and it is only of the last appearance that complaint is made. The fact that the last reference is consistent with the previous usage dilutes any potential adverse effect of the direction. In our view, the word is used to distinguish the fact of his earlier good character from the allegations which he now faced and was, and would have been understood to be, neutral.
39.
Then it is said that the direction gives the impression that it is open to the jury not to consider the evidence at all. The purpose of the direction is to convey to the jury that they ought to take account of relevant evidence of good character. The specimen direction is not a mantra that has to be repeated word for word; the question is whether the direction, taken as a whole, conveyed the need to take character appropriately into account.
40.
Here the appellant relies on
Moustakim
[2008] EWCA Crim 3096
. There the words "she is entitled to have it argued on her behalf" were held to be inadequate. However, we consider that
Moustakim
is distinguishable. There this court concluded that the direction was inadequate for a number of reasons. First, there was no explicit positive direction that the jury should take the appellant's good character into account in her favour. Secondly, the judge's version of the first limb of the direction did not say that her good character supported her credibility. The judge only said that she was entitled to say that she was as worthy of belief as anyone. It went, he said, to the question of whether the jury believed her account. Thirdly, the judge's version of the second limb of the direction did not say that her good character might mean that she was less likely than otherwise might be the case to commit the crime. He said that she was entitled to have it argued that she was perhaps less likely to have committed the crime, and the use of the word "perhaps" is a significant dilution of the required direction. Fourthly, in the judge's direction each limb was expressed as what the defendant was entitled to say or argue, not, as it should have been, a direction from the judge himself.
41.
In the present case the form of words was "you may think". The use of these words was unfortunate. The jury were required to take account of this evidence. What weight they gave it was a matter for them. However, none of the vices identified in
Moustakim
was present in this case. Here the jury can have been in no doubt that the evidence of good character was evidence which they should take into account in the appellant's favour. They had been told so in terms by the judge.
42.
Ground 2
43.
It is said that the judge made improper comments in the summing-up and that he was biased towards the prosecution. Here the appellant relies on a number of matters to which I shall refer in turn.
(i)
Evidence of a child's perception
44.
The judge said this:
i.
"There is an important point to bear in mind about [AB]. When a child is six she may well not be able to see clearly or understand that sexual activity is wrong or inappropriate, especially with an adult. She will already have been conditioned, quite properly, to trust an adult relation. She might even be flattered by the attention. But when the child is 12 or 13 however, knowing much more about the world and having learned more about what makes sexual activity appropriate or inappropriate, feelings that things are wrong may well come to dominate and allegations may explode forth where there was previously silence and no suspicion of them. These are considerations that you should bear in mind."
45.
Mr Arsenio objects to these statements on the ground that while this may be so in many cases, the judge should not have stated this as a general rule. He says that this was directly linked to the question of not having any inhibitions in undressing before her grandfather, a matter which was explored in cross-examination. He says that there was no evidence to support those comments and that they consequently empowered and assisted the prosecution case, lending undue credibility to the complainant's account that she did not have any inhibition or problems undressing in front of her grandfather.
46.
However, as Mr Gadsden for the Crown points out, there was in fact an evidential basis for the judge's comments. The complainant had given evidence that she loved her grandfather when she was young and had thought that his sexual behaviour towards her was a normal way for that love to be reciprocated, but that by the time she turned 12 she had come to realise that such behaviour was abnormal and improper.
47.
Furthermore, we agree with Mr Gadsden's submission that the fact that a six-year-old child may think that there is nothing wrong with getting undressed in the presence of her grandfather is very difficult from a six-year-old child thinking that there is nothing wrong in engaging in sexual behaviour with her grandfather, and would be understood by the jury as such.
48.
In any event, we consider that the judge was entitled to remind the jury that a child of 13 may have a different perspective of sexual impropriety with a grandfather than a child of six.
49.
(ii) Swearing
50.
The complainant gave evidence that her grandfather swore during the alleged sexual activities. However, it was the evidence of the complainant and others, his ex-wife and his son, that he never swore, and Mr Arsenio complains of the judge's observation in relation to this. The judge said this:
i.
"She said he would use sexual words while this was happening, bitch, cunt and fuck. This has been described at various stages [as] swearing.
ii.
... when a person hits their thumb with the end of the hammer you might swear, use one of those words, but using those words in a sexual context is quite different you might think. Some people might use them for stimulation or to heighten the experience, and that is effectively what [AB] is saying took place. It's not swearing as such, it is the use of words which we associate as swear words in a sexual context."
51.
Mr Arsenio submits that the judge sought to neutralise the defence evidence on this point by distinguishing the use of such words for sexual stimulation and the same words used in other contexts, implying that it was possible that the appellant did not swear in general but would say such words in a sexual context. This is said to be particularly grave because it undermined an important point for the defence, which also called into question the complainant's credibility as a witness. Offering an alternative explanation for the complainant's account would have had the effect of augmenting her credibility.
52.
In our view, the judge's observations were not unfair to the appellant. The judge was right to draw a distinction between abusive language directed at a child or other person that was out of context and the use of obscene language as part of a sexual experience. It was not the prosecution case that the appellant swore at the complainant; rather, that he used these words to increase his sexual gratification. The latter was obviously a matter on which his son could not comment. In these circumstances, the judge was entitled to draw attention to the difference.
53.
(iii) Day clothes worn at the time of the menstrual leakage
54.
The appellant complains that the judge gave great emphasis to the fact that, according to the appellant, the complainant was wearing her day clothes at the time of the menstrual leakage and was still in her day clothes the next day but he had seen no blood on them. The judge, in his directions to the jury, said this:
i.
"Well there are several things for you to think about this, to consider about this. Firstly, how can [AB] have been fully clothed and yet leak menstrual blood onto the bed without staining her clothes and/or making them damp?
ii.
The defendant said in evidence there was no blood on her trousers 'If there had been blood on her trousers I would have seen it. She was still in her day clothes the next day'.
iii.
Well, if that is right, how did the blood pass from [AB's] body to the bed without staining or dampening her clothes? Defence counsel suggested that AB might have changed her clothes between the leak of menstrual blood and the defendant seeing her fully clothed.
iv.
Well, that was not put to [AB] so she has not been able to deal with that point and it is not supported by the evidence and there is no evidence that [AB] had a spare set of clothes with her into which she could change.
v.
Is the truth of the matter, so that you can be sure, that what [AB] says, namely that she was naked on the bed and with the defendant and leaked? Well that is a question for you."
55.
Mr Arsenio accepts that the judge was correct in stating that there was no evidence of a spare set of clothes, but makes the point that there was no evidence to the contrary and that this point had been made in his closing speech. In fact, there was no evidential basis for the suggestion that AB may have had a spare set of clothes to change into. Neither the complainant, nor the appellant, had suggested that.
56.
Furthermore, we are told by Mr Gadsden on behalf of the Crown that at the conclusion of the defence speech the judge, in the absence of the jury, had informed Mr Arsenio that there was no evidence on this point and that he proposed to sum up to the jury in the manner in which he in fact did. He invited submissions on the point and none was forthcoming.
57.
It seems to us that this was a good point for the Crown. It was put to the appellant in cross-examination. It was an important point going to whether AB was telling the truth when she said that he was naked when she menstruated.
58.
(iv) The turning of the mattress
59.
It was the appellant's evidence that he had turned the stained mattress alone. Mr Arsenio criticses the judge for casting doubt on this part of the appellant's evidence. The judge said this:
i.
"Next: how was it that [AB] knew to tell the police after the end of the first recorded interview, after the machine had been switched off, that there was a stain of blood on the bed ... Remember, there is no doubt whatever that the blood was [AB's] menstrual blood, any other suggestion would be quite wrong.
ii.
The defendant said yesterday: 'On Sunday I saw the stain. [AB] didn't even know. I never told her she had leaked on the bed'. Well, never was the word he used.
iii.
Mr Gadsden, prosecuting counsel, then put it to [her] how then did she know about the blood to tell the police and the defendant said this ... 'Later on I said to her: "Look at the mattress, that's what you've done to the bed". When she came on the next visit I pointed it out to her, that was two or three weeks later. I turned the mattress back and showed her the blue stain'.
iv.
Well none of this was put to [AB] so she has had no opportunity to deal with it. What [AB] did say, and I quote, 'Sometimes I helped him change the sheets ... we would flip the mattress to keep it fresh. The defendant couldn't flip the mattress himself because he was old'.
v.
Well, you are entitled to ask yourself whether the defendant, as he says, turned the mattress over himself. Also, did the defendant find himself fatally caught out by this point and then invented a story about showing [AB] her blood some time later to try and get himself out of the trap that prosecution counsel sprang. Well, these are matters for you but they are examples of issues that mean that this case may not just be a matter of one person's word against another."
60.
Mr Arsenio criticises the judge's comment that this might be more than just one person's word against another, and he says that this resulted in an unbalanced summing-up.
61.
It was the prosecution case that the appellant had been caught out on a lie and had tried to escape by inventing a story about showing the complainant the stain on a later occasion. In the circumstances, we consider that the judge was entitled to sum up on this issue in the way in which he did.
62.
(v) Sexual dysfunction
63.
Mr Arsenio objects to the judge's statement that there was no independent evidence that the appellant had sexual dysfunction and that it would not have been difficult to obtain such evidence. The judge said this:
i.
"The defendant must know if this were true it would demolish the prosecution case. Although the defendant does not have to prove anything, it is for the prosecution to prove the facts so that you are sure, you are entitled to take into account the fact that ... there is no independent evidence to back this up, which you might think it is not difficult to obtain but has not been part of the evidence."
64.
This, the appellant says, casts doubt on the appellant's evidence and that, in any event, any such evidence would have related to the time after the appellant's heart operation and not to the period of time encompassing the allegations.
65.
In our view, the judge was entitled to draw attention to this matter. Moreover, the point made by the prosecution was that in the light of the appellant's positive assertion that he had been sexually dysfunctional for the last two years of his married life, it was surprising that there was no reference to this in his statement taken by his solicitors from his former wife which was read to the jury.
66.
(vi) Birthday and Christmas cards
67.
The appellant relied on cards from the complainant as evidencing an entirely normal relationship. The complainant's mother gave evidence that the complainant had written on the cards willingly, with the exception of the 2012 Christmas card which she refused to sign. The complainant gave evidence in relation to one birthday card that "my mother would make me write what's there".
68.
The judge said this in his summing-up about this matter:
i.
"The defendant relies on these. He says they indicate that all was well and that [AB] was affectionate towards him, not regarding him as her abuser. 'Look', he says, 'they're messages of affection entirely appropriate for a granddaughter to her grandfather'. Well indeed they are, but what is important is what was really going on in [AB's] head at the time. Were her messages really what she thought or was she writing them, as it were, between gritted teeth to appease the rest of her family perhaps so as not to ... arouse suspicion."
69.
Mr Arsenio complains that the judge offered an explanation to assist the complainant's evidence and support her credibility, in circumstances where her mother had contradicted her evidence. He complains that the judge failed to remind the jury of her mother's evidence.
70.
It seems to us that the jury would have been well aware of the differing accounts of the complainant and her mother. It seems to us that there is no substance in this complaint.
71.
(vii) Mr Arsenio submits that the judge suggested to the jury that the complainant was not lying
72.
The judge said this:
i.
"Well, the central issue in this case then is that [AB] and the prosecution say that she is telling the truth and you can be sure of that. The defendant says it is a pack of lies. He is not saying there was some misunderstanding or that [AB] is too mentally ill to give a reliable account, or is hallucinating or something of that sort. No, the defendant accuses her of lying and that she knows she is lying, it is as simple as that.
ii.
Well, if [AB] has been lying, she's been lying now for two years to people in authority and has done so on several occasions. Her lies, if lies they are, would have split an otherwise apparently perfectly healthy, happy family, it would have been a very wicked thing to do. There is no suggestion that [AB] might be lying, for example, because the family was already unhappy and sides were being taken in some family split, or because she had some malicious but false motive for taking revenge on the defendant. There is no suggestion that [AB] is a fantasist habitually, or a habitual liar, or that she has lied on some other occasion."
73.
Mr Arsenio submits that this strongly suggests to the jury that the complainant could not have been lying.
74.
It seems to us that the judge is here identifying the central issue for the jury's decision and then goes on to deal with possible motivation. No motive had been suggested by the appellant at the trial for malicious fabrication other than the suggestion that she might be missing a father figure. Mr Arsenio referred to this in his closing submissions but it was not put to the complainant. The judge was right to refer to this.
75.
We do not consider that the judge exceeded his proper function in addressing the matter in these terms.
76.
(viii) The discussion of the jury note
77.
Here it is submitted on behalf of the appellant that the judge's comments in relation to possible verdicts revealed an approach to the case which was biased in favour of the prosecution.
78.
We should make clear that we are unable to find any support for this submission. Moreover, the discussion in the absence of the jury is irrelevant to the safety of the conviction.
79.
To conclude then in relation to ground 2, the judge, in our view, went some way in commenting on the evidence in the case. However, we do not consider that he did so in a biased or unfair way. Moreover, he had directed the jury at the start of his summing-up that if he appeared to have a view of the case, the jury was not bound to accept it. In our view, there is no basis here to doubt the safety of the conviction.
80.
Finally, I turn to the renewed application for leave to appeal against conviction. Here, the appellant submits that the guilty verdicts at the re-trial were inconsistent with the not guilty verdicts at the first trial.
81.
Leave to appeal has been refused on this ground by the single judge, who in his written observations said:
i.
"This [ground] is in my view misconceived. This is not a case of a single jury, in a single trial, returning verdicts which could be regarded as inconsistent. The first jury reached verdicts on some counts, but not on others. Counsel has confirmed that no submission was made that a retrial would be an abuse of the process, and I do not see how such an argument could have been advanced. The second jury were entitled to reach their own verdicts as to the counts which were before them."
82.
Accordingly, Holroyde J refused leave on that ground.
83.
We agree with the single judge. The fact that one jury had a doubt does not mean that a second jury acted irrationally in not having a doubt.
84.
Accordingly, the appeal will be dismissed and the renewed application will be refused.