Practice and Procedure


PUBLISHED July 8, 2003

A conviction for indecent assault on a six year old girl was safe as fresh evidence that the defendant was circumcised, which had to be considered alongside the child's interview evidence, could not render the conviction unsafe because the defendant could have said he had been circumcised at trial.Appeal, with leave of the single judge, against conviction for indecency with a child at Leeds Crown Court on 19 October 2000 before HH Judge Jones QC. The defendant ('L') was sentenced to three years imprisonment. The victim ('V') was the daughter of L's partner who he had lived with since February 1999. The counts charged covered the period between 1 February 1999 and 13 January 2000, when V was six years old. Four counts were specific incidents of masturbation by V of D, or felatio performed on D, or both. Two other counts were specimen counts as V said the offences had happened many times. V told her mother in January 2000 that she had a secret and then told her mother what had happened. L was arrested and interviewed, he denied the offences and gave evidence at trial consistent with the interview. He contended that in the summer of 1999 he had been getting into the bath when V entered and grabbed his penis. He told her she shouldn't do that and she said her father had showed her how to do it. V had, on occasions, seen her mother and L engaged in sex similar to what she described. V had also told her mother and L that another young boy had shown her how to do such things. V gave evidence via TV link and a video recorded interview taken a few days after the offences had been reported. V told how when her mother went out she played with L's penis, it had been a secret and she had been doing it for a long time. L made her tickle his penis with her tongue and he kept watch for her mother to return. She was asked what it was she had done several times and gave descriptions including "pull his skin" "lots of skin like lots of skin on your neck". L appealed conviction on the ground that he was circumcised and what V described could not be a circumcised penis. He sought to adduce fresh evidence from a doctor's report dated 12 January 2002. The report gave descriptions of a circumcised penis taken from Grays Anatomy. It clearly assumed L was circumcised and stated it was very unlikely that V was describing masturbation of a circumcised penis. L, on the day of hearing, produced a letter from another doctor who had examined L and confirmed he had been circumcised.HELD: (1) The letter would be admitted despite the fact it was self evidently evidence which had been available at trial. L could have said himself that he was circumcised and if there was any doubt to that he could have been examined by a doctor. The description, in the doctor's report, of the penis would also be admitted. The opinion as to what type of penis V was likely to be referring to would not be admitted. It would not have been admitted at trial as to admit it would have usurped the role of the jury. The court was not intending to set any precedent as to when evidence of this type might or might not be admissible in cases on different facts. (2) The fresh evidence had to be considered in line with the interview given by V when she was six years old. Obviously a six year old girl could not describe the penis in the same way as described in Grays Anatomy. V was obviously describing what happened when the penis was erect and before it became erect. Skin on the body of a flaccid penis could be loose and mobile and not much significance could be placed on particular parts of V's evidence referring to loose skin. (3) L knew he was circumcised and must have read V's interview evidence before the trial and it did not occur to him that she was describing a uncircumcised penis. At trial he said it was because she had seen him at close quarters which enabled her to describe his penis. There was not doubt the conviction was safe and there was no doubt that the evidence would not have raised any doubts in the mind of the jury.Appeal dismissed.