R v Christopher Killick
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas |
| Judgment Date | 29 June 2011 |
| Neutral Citation | [2011] EWCA Crim 1608 |
| Docket Number | Case No: 2011/00281/C1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 June 2011 |
[2011] EWCA Crim 1608
Lord Justice Thomas
Mrs Justice Dobbs
and
Recorder of Redbridge—his Honour Judge Radford
Case No: 2011/00281/C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE ROOK QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Anthony Arlidge QC and Ms T J Mylvaganam for the Appellant
Miss Johannah Cutts QC and Miss E Smaller for the Respondent
Hearing date: 31 March 2011
Introduction
In February 2006 Mr andrew Hardy and Mr Bill Robins, who both suffer from cerebral palsy, complained to the police of sexual assaults made upon them by the appellant; Mr Robins alleged the assault occurred in 2005 and Mr Hardy alleged he had been anally raped in 1996. They had received the assistance of an employee of the Greenwich Association for Disabled People, Mr Bowater. Mr Bowater was told by Mr Hardy that another man had also been subjected to sexual assault by the appellant; Mr Bowater saw that person, Mr Peter Edwards. A little later in February 2006 a complaint of non-consensual buggery of Mr Edwards by the appellant in the early 1990s was then also reported to the police.
Each of the complainants was interviewed by means of an ABE interview in early March 2006. Cerebral palsy had not affected their mental capacity; each was severely physically disabled and used a wheel chair; none could move or communicate with ease; Mr Edwards communicated through his personal assistant who interpreted what he said in a more audible way; Mr Hardy communicated through an electronic speech machine and body language; Mr Robins communicated by use of a personalised book or BLISS symbols. It was the case of each that the appellant knew of his disabilities and had exploited these to force his unwanted sexual attentions on him.
The appellant also suffers from cerebral palsy, though to an extent that is accepted to be considerably less than that of the complainants. An issue related to the extent of his disability which we consider further at paragraph 65. He was arrested and interviewed on 3 April 2006. He provided a prepared statement in place of answering the questions. He denied any form of sexual activity with Mr Edwards or Mr Robins; he accepted that he had had anal intercourse with Mr Hardy but said it was consensual.
Although the arrest followed within a relatively short period of the making of the complaints, the decision on whether to prosecute was not made until June 2007, a year later, when the CPS decided that the appellant should not be prosecuted. A complaint was then made about that decision which resulted in a review; the decision to prosecute was not made until 9 December 2009, 3 1/2; years after the arrest. In the meantime, the appellant had been told he would not be prosecuted. He was informed of the decision to prosecute when he was summonsed to appear at the Magistrates Court on 22 February 2010.
The case was sent to the Central Criminal Court in September 2010. His Honour Judge Rook QC heard an application by Mr Arlidge QC for the appellant that the proceedings should be stayed for abuse of process. It lasted 3 days. In a careful and detailed written ruling, he dismissed the application. The trial commenced in November 2010. After the prosecution evidence had been heard, the judge affirmed his decision and also held that there was a case to answer. The appellant did not give evidence.
The jury retired to consider its verdict on Thursday, 16 December 2010. On Tuesday, 23 December 2010, the jury convicted the appellant by majority of:
i) buggery of Mr Edwards without his consent between 1 January 1991 and 1 January 1993, contrary to s.12 (1) of the Sexual Offences Act 1956;
ii) sexual assault on Mr Robins in April 2005.
The jury acquitted him of the anal rape of Mr Hardy in November 1996.
The appellant was sentenced on 28 January 2011 to three years imprisonment for the offence of non-consensual buggery with a concurrent sentence of six months imprisonment for the sexual assault.
His application for leave to appeal against conviction was referred to the Full Court. It gave rise to three issues.
i) Whether the judge's decision to allow the matter to proceed and to dismiss the application for a stay for abuse of process was wrong.
ii) Whether fresh evidence should be admitted under s.23 of the Criminal Appeal Act 1968;
iii) Whether the conviction was unsafe in all the circumstances.
We will consider each issue in turn, but it is necessary first to explain the factual background and the respective cases of the Crown and the appellant.
(i) The complainants' knowledge of each other
The complainants are all of similar age to the appellant who was born in 1963. Mr Edwards was born in 1963, Mr Hardy in 1964 and Mr Robins in 1968. The complainants had known one another since they attended a school for the disabled. Mr Edwards and Mr Robins each described Mr Hardy as their best friend. All three were determined to live independently; with the help of the Greenwich Association for Disabled People they were all able to do so, though each had an assistant who lived with him.
(ii) The complaint of Mr Edwards and the appellant's case
Mr Edwards lived in south east London and met the appellant through Mr Hardy. It was his evidence that the appellant came to visit him at his flat. They knew they were both gay and had engaged in sexual game play. On one occasion in the early 1990s, when they were alone the appellant had anal intercourse without his consent. In his account to the jury he said that the appellant had kissed him and he had kissed him back; he had consented to that. The appellant had asked if they could go to his bedroom. Mr Edwards said "no" on several occasions. The appellant then tried to push him in his wheelchair into the bedroom, but he dug his feet into the ground to stop it. The appellant nevertheless forced Mr Edwards into the bedroom, pushed him onto the bed, took his clothes off, despite his resistance, and then took his own clothes off. The appellant then fondled his penis and testicles; he had not ejaculated. The appellant then turned him on to his back and had anal intercourse with him. In his statement to the police Mr Edwards gave a different account; he had said that, after the appellant had kissed him, the appellant then suggested that they go into the bedroom; Mr Edwards agreed, thinking that they might kiss again. The appellant then masturbated Mr Edwards and himself to ejaculation. He had felt guilty because he ejaculated. The appellant had then gone further and had anal intercourse. When these different accounts had been put before the jury, he said that the correct version was that given to the police. He had not told anyone then as the appellant had said he would kill him if he did. It was his evidence that he told others later; evidence was called to support that. We consider that at paragraphs 71 and 83.
The appellant's case at trial was that there had been consensual kissing and masturbation of Mr Edwards but there had been no anal intercourse; in his prepared statement made in April 2006, he had denied any sexual activity with Mr Edwards.
(iii) The complaint of Mr Hardy and the appellant's case
Mr Hardy met the appellant in the mid-1980s when Mr Hardy lived at a home for the disabled, Good Neighbours House in Camberwell, and the appellant lived nearby. In 1990 the appellant moved to live in East Anglia; Mr Hardy visited him there.
On 29 November 1998 the appellant came to stay with Mr Hardy whilst he was attending a conference in London. Mr Hardy went to bed. A little later, the appellant came to his room and asked him if he wanted sex. His evidence was that, as the machine through which he communicated was switched off, he had used his eyes to indicate that he did not want sex. However the appellant got into his bed, kissed and fondled him and then had anal intercourse. It was his evidence that immediately the rape was over, he alerted his personal assistant, Edwin Mahinda, who came in and saw the appellant naked in his bed. They gave differing accounts of the state in which the appellant was when he entered. The police were called, though a complaint was only made of a common assault on Mr Mahinda which Mr Mahinda agreed he had embellished; Mr Hardy's explanation for not telling the police of the anal rape at that time was that he was stressed, afraid and he did not want his mother to know. Although Mr Hardy subsequently told the police he had never had anal sex before with the appellant, his evidence was that the sexual relationship he had enjoyed with the appellant was for several years up to 1990.
It was the appellant's case that he had had a consensual sexual relationship with Mr Hardy; however there was no intercourse on the occasion in 1998. His case was that, when they had consensual intercourse, he had been the passive party as he always was when engaging in anal intercourse; he said this was supported by MSN and Yahoo messages exchanged between Mr Hardy and the appellant in 2005 in which Mr Hardy had said, "I liked penis, your bottom" and the appellant had replied, "My bottom is very nice as you may know far too well".
(iii) The complaint of Mr Robins and the case of the appellant
Mr Robins met the appellant in 2005. His evidence was that the appellant had visited him at his flat in Crayford one day in April 2005. When his assistant, Miss Webberson, was away, the appellant started to talk about sex; he tried to kiss Mr Robins and put his hand on Mr Robins'...
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