R v H (1995)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 18 February 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0218-19 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 93/1957/X5 |
| Date | 18 February 1994 |
[1994] EWCA Crim J0218-19
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Russell Mr Justice French and Mr Justice Harrison
No. 93/1957/X5
MR S BEST appeared on behalf of the Appellant
MR J GIBBONS appeared on behalf of the Crown
On 4th February 1993 in the Crown Court at Winchester this appellant was convicted before Tucker J. and a jury of four counts contained in a single indictment. Count 1 charged indecent assault upon the appellant's adopted daughter. Count 2 charged an act of gross indecency towards the same child. Count 3 alleged sexual intercourse with the child when she was under the age of 13 years, and Count 4 charged indecent assault with another girl who was the appellant's step-daughter.
The offences were all alleged to have taken place over a period of about 2 years between 1987 and 1989 when one girl was about 9 years of age and the other about 14 years of age.
The younger girl complained that the appellant put his finger in her vagina, handled her breasts and made her kiss his penis. Eventually sexual intercourse took place. Hence, the first three counts in the indictment. The appellant's step-daughter made similar complaints, though in her case the indecency fell short of sexual intercourse. There were, however, plainly similarities in the accounts that were ultimately given by the two alleged victims.
Neither confided in the appellant's wife until May 1992. The complaints were made on the same day. This led to the appellant's arrest, whereupon he consistently denied that he had been responsible for any indecency with either of the children concerned. He suggested that the younger girl had formed an association with a boy of which he did not approve. She wanted the boy to move in and, when the appellant was arrested and forced to leave home, this is what the boy did at the girl's invitation.
At trial no application for severance was made by counsel appearing for the appellant. It was and is conceded that there were features of the evidence given by the girls which, subject to one reservation, fell within the concept of 'similar fact' evidence, and that therefore the jury were entitled to regard one girl's evidence as corroborating the other. ( D.P.P v. P [1991] 93 Cr.App.R. 267 and [1991] 2 A.C. 447.)
The one reservation which we are told was put by counsel to the girls was to the effect that they had had their heads together and had collaborated in concocting a false story. The suggestion was denied by the girls, and there the matter rested save that in his closing address to the jury Mr. Best, who appeared in the court below and who has argued the appeal before this Court, submitted that the case was one of "collaboration not corroboration".
In his advice on the prospects of an appeal against conviction dated 20th February 1993 Mr. Best is on record as saying:
"The Trial Judge (Tucker J.) ruled correctly that C and S's evidence as to indecency involved in three of the four counts could be treated as corroboration, but he accepted my submission that so far as sexual intercourse with S was concerned there was no corroboration. It was simply her word against that of the defendant. The Learned Judge so directed the jury and I should say at this stage (as I indicated to the defendant at the time) that in my view no criticism could be advanced in respect of the summing-up which was entirely fair".
For the purposes of this judgment it is necessary to refer to only two passages in the summing-up. At page 5 the judge said:
"In the present case there are two girls who complain of the defendant's indecent attentions on separate occasions. The defendant was in the position of a father to both of them. Their complaints, you may think, are very similar in several respects. All the matters complained of took place in the home, and partly during the same period of time. In other words, the offences overlap. Both girls allege that the defendant put his finger up their vaginas. They both allege that he put their hands on his penis and then moved their hands up and down, and they both allege that he tried to get them to kiss his penis.
If you find that there are those similarities in the girls' accounts and, in particular, if you are sure that they have not collaborated to concoct a false story against the defendant, then it would be open to you to conclude that the evidence of one girl about what occurred to her is so related to the evidence given by the other girl about what happened to the other girl, that the evidence of the first girl provides support for the evidence of the second girl, and visa versa. In other words, their evidence on those matters is capable of mutually supporting each other.
But there is one matter at least which is spoken to by one girl and not mentioned by the other. I refer in particular to the evidence of S that the defendant had sexual intercourse with her. There is no corroboration for that allegation in the evidence of C, or anywhere else. Nevertheless, despite the absence of independent confirmation that sexual intercourse took place, and provided you bear in mind the danger of convicting without it, you may rely on S's evidence if you are sure that she is telling the truth".
Later, at page 16 the judge commented:
"Members of the jury, is it possible that these girls have made it up because of some resentment towards the defendant, or because S knew he disapproved of her relationship with her boyfriend and would not have allowed her boyfriend to come and live in the house, as he has done since shortly after the defendant's departure, apparently sleeping in what was formerly the matrimonial bedroom?
The defence say this is the key to the matter, and that this story, as they allege it to be, of her father assaulting her is a scenario that S conceived as an excuse for rejecting her boyfriend's overtures, and that when her boyfriend pressed her about it out came this story, and the boyfriend, it is suggested, insisted that the matter went further.
The defence, in other words, as expressly stated to you, is that these girls have told a pack of lies, have put their heads together, have collaborated in concocting a false story against their father. Alternatively, may the girls have fantasised about all this? I emphasise, it is not for the defendant to prove either of those matters, but for the prosecution to satisfy you so that you are sure that the girls are telling the truth".
On 11th March 1993 another constitution of this Court gave judgment in R v. Ananthanarayanan [1994] 98 Cr.App.R. 1. This was followed by another judgment of another constitution of this Court, as yet unreported, R v. Ryder dated 12th March 1993. Mr. Best submits that these two cases have radically altered the law and, relying upon them, he now submits that Tucker J. should not have directed the jury that the evidence of one girl could corroborate the other, that in so doing the summing up was fatally flawed, and that the verdicts returned were unsafe and unsatisfactory. It is necessary for this Court, therefore, to examine the authorities in order to decide whether there is substance in counsel's submissions.
R v. Ananthanarayanan was a case involving seven alleged offences of indecent assault by a consultant psychiatrist. There were four complainants who were nurses or care assistants with whom the defendant came into contact at different establishments. The defendant was convicted on five counts but acquitted on two. He denied all the allegations. The submission was made that the judge was wrong to direct the jury that the evidence of the women was capable of amounting to corroboration because, so it was submitted, there was a possibility of contamination.
Laws J., giving the judgment of the Court said:
"The basis upon which Mr. Barker submits on the facts that there was a risk of contamination between the witnesses' accounts is, essentially, twofold, and the two considerations in question interlock. The first is that in large measure the women's complaints were first made at the same time, one with another, and that, save in the case of Fiona Hackney, they were made at a considerable distance of time after the events were alleged to have taken place. Thus the complaint of Paula Rhodes was made in August 1991 but the assault which she alleged took place was in June 1989…… Indeed, none of these three complainants made their allegations until after the complaint made by Fiona Hackney in August 1991.
Alongside these facts runs Mr. Barker's second point, namely that there was evidence to show, or at the least to suggest, that the complaints (at any rate those made after that of Fiona Hackney) were not spontaneous but prompted by a common source: in the summer of 1991 the Social Services Department of Stoke-on-Trent were actually seeking potential complainants who might make allegations of indecency against the appellant. He said that in cross-examination Bridget Hill told the court that in August 1991 the Social Services Department were looking for persons who might make an allegation against him, and Paula Rhodes said that she made her statement in 1991 because her superior, a Miss Tempest, telephoned and asked her to do so.
In our judgment these circumstances give rise, at least, to a real possibility that the complaints which ultimately emerged, and which formed the basis of the prosecution case before the jury, were not truly independent of one another. The fact that some of them may have been prompted obviously suggest this. It is not necessary to speculate upon...
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