Practice and Procedure


PUBLISHED July 28, 2003

The appellant's convictions for indecent assaults against young girls over 30 years ago were safe. His sentence would be reduced from seven years to four and a half years as these were not the most serious offences of their kind.Appeal against conviction for ten counts of indecent assault against children and against the sentence imposed of seven years' imprisonment. The appellant ('B') was charged with sexual offences committed between 1967 and 1982 against five young girls ('J', 'H', 'A', 'C') including his own daughter ('M'). He had previously been convicted of various sexual offences against young girls in 1999 in Cardiff and had been sentenced to two and a half years' imprisonment. The publicity from this trial prompted the further complaints to be made to police. One complainant, the sixth girl ('L'), was too ill to attend court to give evidence so the trial proceeded in relation to the five girls only. The allegations related, variously, to B touching the girls' private parts, inserting his finger into their vaginas, masturbating in front of them and/or touching their breasts between 1967 and 1982. B's contention at trial was that all the girls were lying and that J and L had colluded to make a false complaint. B appealed his conviction on the basis that: (i) two paragraphs of J's statement should have been adduced to show that she had stated that B's penis was scarred, which was not true and that she had made an allegation of indecent assault against her head teacher. B sought to show that L was capable of making false allegations which made collusion and falsehood more likely. The judge refused the application on the grounds that the evidence was hearsay and that selective introduction was objectionable; (ii) an alibi direction should have been given in relation to the count concerning J, which was a specimen of indecent assault relating to the period between November 1967 and November 1968, as B served in Aden between 1965 and 1967; and further, that no direction was given as to the effect on J's credibility if the jury concluded she had lied in part of her evidence; (iii) the character direction was incorrect in that the judge was wrong to tell the jury that B's previous convictions had been adduced because he had attacked the character of the complainant witnesses; the judge should not have given the usual credibility direction but should have restricted his direction to a warning against using previous convictions as evidence of propensity; and further, that the direction was unbalanced and unfair; (iv) the judge was wrong not to leave the allegation of H as a count relating to a single incident after she gave evidence that she could only remember one incident clearly; (v) the judge erred in directing the jury that they should not approach the evidence of any particular complainant on the basis that, if they found fatal flaws in her evidence, they must reject it as a whole. The judge referred to the jury deciding who was telling the truth and this watered down the burden of proof; and (vi) the judge failed to sufficiently emphasise the prejudice to B as a result of the delay upon these proceedings. B appealed his sentence as being excessive due to the extraordinary delay between the commission of the offences and the trial and that he had already been convicted and sentenced to two and a half years' imprisonment in respect of the other indecent assaults in Cardiff.HELD: (1) The judge was correct that the evidence of L's statement was not relevant. The issue of whether L was telling the truth in her statement was not before the jury. It was not relevant to the question of collusion or veracity of the witnesses called. The general rule was that evidence was not admissible to contradict answers given by a witness to questions put in cross-examination concerning collateral matters: R v Summers (1999) Crim LR 745. (2) There was no substance in the second ground of appeal. No alibi direction was necessary. There was ample opportunity for the offences to have occurred over the period charged and the judge adequately directed the jury as to the burden of proof and the need for unanimity in relation to the verdict as to any particular incident. (3) Once there was evidence of a defendant's previous convictions before a jury, it was necessary and proper for a judge to give a character direction that dealt with both credibility and propensity. A defendant, by adducing evidence of previous convictions, should not ordinarily gain the benefit of a propensity warning, while escaping the disadvantage of a credibility direction. The direction was not unbalanced or unfair. (4) There was no likelihood of an unsafe verdict in relation to the sample count for H rather than a single incident count. (5) In relation to the fifth ground of appeal, the judge was not in error and did not leave the jury in doubt as to where the burden of proof lay. (6) The judge's directions and comments were adequate to alert the jury to the dangers inherent in delay. (7) The verdicts were safe and the appeal against conviction would be dismissed. (8) If all of B's offences had been heard together, a sentence of more than seven years would not have been imposed. The assaults were not the most serious kind in this category of offence. The total sentence should be reduced to one of four and a half years' imprisonment.Appeal against conviction dismissed. Appeal against sentence allowed to the extent set out above.

[2003] EWCA Crim 2169