R v Janusz Marian Malicki
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS |
| Judgment Date | 12 February 2009 |
| Neutral Citation | [2009] EWCA Crim 365 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2008/04662/D1 |
| Date | 12 February 2009 |
[2009] EWCA Crim 365
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Richards
Mr Justice Christopher Clarke
and
Sir Peter Cresswell
No. 2008/04662/D1
Mr M Melville-Shreeve appeared on behalf of the Appellant
Mr I Leadbetter appeared on behalf of the Crown
Thursday 12 February 2009
On 23 July 2008, following a trial at Truro Crown Court before His Honour Judge Elwin and a jury, the appellant was convicted on one count of sexual assault of a child under the age of 13. He was acquitted on a second count relating to a different child. He now appeals against his conviction by leave of the single judge.
The relevant complainant was a girl “L” who was 4 years 8 months of age at the time of the alleged offence. L lived with her mother on the same estate as the appellant, whom L referred to as “John”.
On 24 May 2007, while her mother was filling the paddling pool, L went over the road with her mother's permission to see the appellant. She was wearing her bikini. When she returned she had an uneaten chocolate biscuit in her hand and she looked upset. When asked what was wrong she told her mother that she did not like John, he was nasty. She then told her mother that the appellant had pulled aside her pants and put his head in her “body”, which the mother said was L's word for her vagina, and had “nipped” her. “Nipped” seems to have been the word used, or understood to have been used, at the time, though subsequently, as we shall explain, L's account was that the appellant had licked her. L demonstrated to her mother what had happened by pulling her bikini bottom over to expose her vagina. Her mother immediately telephoned a neighbour, to whom L gave the same account.
The police were contacted. A video-interview of L was conducted the following day, 25 May. In that interview L repeated essentially the same account to the police. She stated that the appellant had pulled aside her pants and put his head in her “body” while she was sitting in his rocking chair. She described it as “tickling”, not hurting. When she was asked what she had told her mother on returning home after seeing the appellant, the questions and answers were as follows:
“Q. …. And did you tell mummy that John had nipped you somewhere?
A. He didn't nick me.
Q. Lick, did you say, did he lick? What did you say to mummy, lick or nip?
A. Lick.
Q. Lick. Did he lick you?
A. (Nods head)
Q. Where did he lick you?
A. (makes sound) (indicates)
Q. Where you're pointing. ….”
Importance is attached by counsel for the appellant to the fact that the first reference to licking was in response to the leading question that is in that passage.
The police interview was conducted with commendable speed. The appellant's trial, on the other hand, was the subject of serious delay. It did not take place until the second half of July 2008 —fourteen months after the alleged incident. The delay is explained in part, but is not justified, by the fact that the appellant's computer was found to contain a large number of indecent images, which took time to analyse and which in the end became the subject of a separate trial. We are told that that trial has recently come to a conclusion and has resulted in the appellant's conviction.
At the trial of the counts of sexual assault, L's evidence was given in the form of the video of her interview, with short cross-examination. We do not have a transcript of the cross-examination because, regrettably, the tape cannot be found. In his summing-up the judge summarised the effect of the cross-examination in this way:
“In cross-examination, L did agree that when she got into the defendant's house and had been given a biscuit she sat on his rocking chair. He did not like that and pulled her off and told her to go home. She was firm, however, when pressed, that what had upset her was not that, i.e. being pulled out of the chair, but the defendant's moving her pants and licking her.”
We shall deal in a moment with what counsel tells us about the cross-examination.
In addition to the evidence of L, there was evidence at trial from her mother and from the neighbour.
The count on which the appellant was acquitted related to an alleged assault on a girl “S”. The allegation was that he had touched her in the area of her vagina over her trousers on a separate and earlier occasion. At the trial there was video evidence from S and cross-examination of S about that incident.
In the course of the trial the judge rejected submissions, to which we will return in a moment, that neither complainant was a competent witness or that their evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 and that the case should be stopped because of the delay in bringing the matter on for trial. At the end of the prosecution case he also rejected a submission of no case to answer, which was founded on much the same concerns in particular about the effect of delay.
Following the refusal of that submission, the appellant did not give or call any evidence.
The grounds of appeal, as originally settled, focus on L's competence as a witness and the effect of the delay between the incident and the trial. Mr Melville-Shreeve, who appears before us today on the appellant's behalf, has accepted the difficulties that he faces in relation to the issue of competence and has concentrated on the question of delay. Because of the linkage between the two issues in the submissions made at the time, we will deal briefly with competence as well as with the point specifically pursued by counsel.
The test of competence, as set out in section 53(3) of the Youth Justice and Criminal Evidence Act 1999, is that a person is not competent to give evidence in criminal proceedings if it appears to the court that he or she is not a person who is able to (a) understand questions put to him as a witness, or (b) give...
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