R v Hester ; DPP v Hester
|England & Wales
|LORD JUSTICE PHILLIMORE,MR. JUSTICE BRABIN,MR. JUSTICE TALBOT
|21 April 1972
| EWCA Crim J0421-2
|Judgment citation (vLex)
| EWCA Crim J0421-1
|Court of Appeal (Criminal Division)
|21 April 1972
 EWCA Crim J0421-1
Lord Justice Phillimore
Mr. Justice Brabin
Mr. Justice Talbot
IN THE COURT OF APPEAL
Royal Courts of Justice
MR. O. WRIGHTSON appeared as Counsel for the Appellant.
MR. R.H.A. LENNY appeared as Counsel for the Crown.
This is an appeal against conviction of an indecent assault by leave of the single Judge. The Appellant, Hester, appeared at Durham County Quarter Sessions on an indictment charging him with three separate counts of indecent assault on a young girl called Valerie Stirling who was aged 12. He was acquitted on the first two counts, the assaults in question being said to have occurred on the 6th and 9th September, 1971, but he was convicted on the third count said to have occurred about half past one in the morning of the 10th September.
The appeal arises in this way: the single Judge observed that in regard to the first two assaults there was no suggestion of corroboration, and he said this: "As the Jury were not prepared to act on the uncorroborated evidence of Valerie on Counts 1 and 2, I think that the verdict on Count 3, where she is corroborated by June's unsworn evidence is unsatisfactory".
That does not in terms raise the real point of law in this appeal, which is a point of considerable importance and it is this. It is whether the child June aged 9, having given her evidence unsworn, could be treated as corroborating her sister Valerie who had given her evidence on oath; in other words whether the direction to the Jury ought not to have been that there was no corroboration of Valerie on the third count either, instead of, as was the case, a direction that they could treat the evidence of June as corroborating that of Valerie.
It appears that at the time the Appellant had been living with a Mrs. Stirling at a house in Consett. Mrs. Stirling had a number of children, and amongst them was this girl Valerie and another, June, and there were others, Carol, Yvonne, and I think also a boy. It is right to say that it is perfectly clear that Mrs. Stirling had got extremely tired of the Appellant's company, and would have liked him to depart. That feeling appears to have been shared by her daughters. The evidence of Valerie on the first count was not very reliable; she had clearly altered the story which she had previously given to the Appellant, and it seemed rather difficult to account for an assault in the circumstances which she described; but that does not perhaps matter very much.
The evidence of June treated as corroboration was in itself very strange; she spoke of seeing this man put his hand under the bedclothes and on the private parts of Valerie at a time when she was lying apparently with her face to the wall in the same bed as Valerie with another child, Carol in between them, and a child, Yvonne inserted somewhere else in the bed, again on the face of it not very satisfactory, but this Court would prefer to deal with this matter on the pure point of law.
The learned Judge, in giving the direction that he did give, that the Jury could treat the evidence of June as corroborating Valerie, stated in terms that he was relying on the decision of the Court in the case of ; that was a decision of the Court of Criminal Appeal in which the Court was concerned with an indictment containing seven counts alleging indecent assault on a number of boys; all the children gave evidence on oath, but the Court nevertheless proceeded to deal with circumstances where evidence was given by children otherwise than on oath. It is clear that the judgment of the Lord Chief Justice, Lord Goddard, was largely obiter, and certainly in respect to the evidence of children given otherwise than on oath.
The Court thinks that the passages in Archbold, notably at paragraphs 1289 and 2917 citing , passages on which the the learned Deputy Chairman in the present case relied, are in fact inaccurate and do not represent the true position in law.
In the first place it does appear from the judgment of the Lord Chief Justice that the Court misunderstood the judgment in the case of reported in , and further and this is perhaps more important, was never referred to the case of in which the judgment was given by Lord Reading in 1915 and which was reported in 11 Criminal Appeal Reports at page 272, and is the real start of the authorities, a decision which seems to have been overlooked again and again.
As Professor Cross points out in his book on Evidence at page 165 of the Third Edition dealing with unsworn evidence of children:- "A child is allowed to give unsworn evidence in criminal cases (and criminal cases only) provided it is of sufficient intelligence and understands the duty of speaking the truth. This is the effect of Section 38 of the Children and Young Persons Act, 1933. It is subject to the proviso" - and this is important - "Where evidence admitted by virtue of this section is given on behalf of the prosecution the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him". This was a case where the evidence admitted on behalf of the Prosecution, namely the evidence of June, was unsworn, and accordingly the Accused was not to be liable to be convicted of the offence on her evidence unless her evidence was corroborated.
Going back to the case of , that was a case where the appellant had been charged with and convicted of rape of the mother of two boys, Wilfred and Stanley. Reference was made to the provisions of Section 30 of the Children's Act 1908 and to the proviso contained in that section. It is clear that the provisions in question were the same as those in the 1938 Act to which the Court has referred. The Lord Chief Justice, giving judgment, referred to the fact that the evidence of Stanley, who was a boy of tender years (he was aged 8) had been given unsworn and therefore required corroboration. He said this: "The judge failed to direct the jury that this was evidence by a boy of tender years, and that under the statute 'a person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is corroborated by some 'other material evidence in support thereof implicating the accused'. That is by Section 30(a) of the Childrens Act 1908, which has been applied to all offences by Section 28(2) of the Criminal Justice Administration Act, 1914; it therefore applied to this case. Where evidence is given by a child not on oath, in pursuance of these two statutes, it is necessary that the judge should direct the jury not to convict the prisoner on that evidence unless it is corroborated by some other material evidence in support thereof implicating the accused".
It is to be observed that nobody suggested in that case that the evidence of the mother, who was of course the complainant, could be treated as corroborating the evidence of Stanley so that in the result the evidence of Stanley could be treated as corroborating his mother and thus affording the necessary corroboration to support a conviction.
That takes us to the next case, namely the case of reported at . That was a case tried before the Court of Criminal Appeal, the Lord Chief Justice, Lord Hewart presiding. It was a case where the appellant was charged with carnal knowledge of a girl under 13 years of age, namely Barbara Wickenden and the evidence of her sister Doris was called to support the case for the Crown. It appears to this Court entirely clear on a full reading of the report that Barbara's evidence was sworn evidence, she being a girl of 12 or thereabouts, whereas that of Doris who was only 9 was, as stated, unsworn. In the course of the argument, a submission was put forward for the Crown to the effect that the jury were entitled to regard the evidence of the two girls as being mutually corroborative, that is to say in relation to that of Doris that it was corroborated by the evidence of the complainant namely Barbara. Nobody seems to have questioned whether Barbara could be regarded as an entirely independent witness. However, Lord Hewart dealt with it as follows at page 20: "There is one further matter which is the most important of all and may indeed be regarded as conclusive. The story of the little child Doris, who was nine years of age and had given evidence without taking the oath, was treated as corroborative of the evidence of the girl Barbara. Now by statute" and this of course is a reference to the Childrens Act and the proviso - "the evidence of the little child who had not been sworn was not to be accepted as evidence at all, unless it was corroborated. The argument for the prosecution is therefore an argument in a circle. Let it be granted that the evidence of Barbara has to be corroborated; it is corroborated by the evidence of Doris. She, however, also needs to be corroborated. The answer is that she is corroborated by the evidence of Barbara, and that is called 'mutual corroboration'. In truth and in fact the evidence of the girl Doris ought to have been obliterated altogether from the case, inasmuch as it was not corroborated. It clearly was not corroborated by the evidence of the girl Barbara".
Of course those words are directly in point in the present case, and indeed they were directly in point, or would have been, in the case of if one of the witnesses there treated as corroborative had been unsworn. It is quite clear from the...
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