Practice and Procedure

R v (1) S (2) B (2003)

PUBLISHED March 18, 2003

The judge had been correct to allow the jury to decide on the credibility of a 5 year old child in relation to alleged sexual offences by her step father, but the judge should have treated the case of the child's uncle differently because the allegations and evidence against him were much weaker.Appeal by the first appellant ('S') against conviction on three counts of gross indecency with a child and one count of attempted rape and by the second appellant ('B') against conviction on one count of gross indecency with a child. The victim ('L') was aged 5 at the time of the alleged offences and aged six at trial. S was L's stepfather and B was her uncle. Following disclosure to her mother L was video interviewed and provided details of the alleged offences by S. L also for the first time made allegations against B at interview. Medical evidence was inconclusive. S and B both denied the charges and the issue for the jury was the credibility of L. L was considered a credible witness by the judge but there were various inconsistencies with the evidence especially in relation to B. On appeal S contended that: (i) the case should have been stopped at the close of the prosecution case; (ii) the judge misdirected the jury on the application of R v Galbraith (1981)73 CAR 124 in relation to corroborative evidence; and (iii) the judge should have ruled that the evidence was tenuous and/or weak within the second limb of Galbraith (supra). B contended that: (i) the judge erred in allowing L's video evidence as evidence in chief; (ii) the case should have been dismissed when the prosecution closed its case; (iii) the judge misdirected the jury when he suggested that the defendants would probably have similar verdicts; and (iv) the verdict was against the weight of the evidence.HELD: (1) In relation to S the judge had been correct to allow the case to go to the jury. There had been no element of reluctance or prevarication by L in relation to S and no inconsistency in her complaint. The detail L went into in describing the indecency with S precluded the likelihood of invention or coaching. (2) In relation to B the judge had not been wrong to allow the video evidence and had not misinterpreted Galbraith (supra). However, the conviction was unsafe because it had been vital for the judge to differentiate between the case against S and that against B. The absence of corroborative facts was more remarkable than in the case of S. It was clear that L had lied about telling her mother of the indecency with B. B had been prevented from cross-examining L on important matters.Appeal by S dismissed. Appeal by B allowed.

[2003] EWCA Crim 696