R v Kilbourne
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 31 July 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J0731-14 |
| Docket Number | No. 2199/A/72 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 July 1972 |
[1972] EWCA Crim J0731-14
Lord Justice Lawton
Mr. Justice MacKenna
and
Mr. Justice Swanwick
No. 2199/A/72
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. E. GREENWOOD appeared on behalf of the Appellant.
MR. C. HOLLAND appeared on behalf of the Crown.
The Appellant, John Kilbourne, was convicted at Leeds Crown Court after a trial before Mr. Justice Lawson and a jury on one count of buggery, one of attempted buggery and on five of indecent assault. He was sentenced to ten years' imprisonment for buggery, seven years for attempted buggery and five years' imprisonment on each of the other counts. The sentences on counts 1 to 4 were to be concurrent with one another and the sentences on counts 5 to 7 were to be consecutive to the sentences on counts 1 to 4, but concurrent with one another. These sentences totalled fifteen years: all were certified to be extended ones. He now appeals by leave of the single Judge against both his conviction and his sentences.
The appeal against conviction raises this problem; when a number of boys, not being accomplices, give evidence about acts of indecency by an accused on different occasions in what circumstances, if any, is the evidence of each one admissible on counts involving others; and if it is, is such evidence capable of being corroboration of the evidence of others.
The counts fall into two groups. Counts 1 to 4 referred to offences alleged to have been committed in the months of October and December 1970 and involved four boys, John, Paul, Mark and Simon; counts 5 to 7 alleged offences in the same months of the following year and involved two boys, Gary and Kevin. All the boys save two were aged 10 at the time of the alleged offences: the boy Mark in count 3 was then 9 and the boy Kevin in count 7 was aged 12. The trial judge was of the opinion that they were all old enough to be sworn in the form prescribed by section 28 of the Children and Young Persons Act, 1963, and they were so sworn. It follows that no question arises about the effect of the unsworn evidence of children.
The prosecution's case against this Appellant can be stated shortly. It was alleged that he had encouraged small boys to come to his house by providing them with comics, playing cards, small gifts of money, and light refreshments and by holding out inducements such as allowing them to take his puppy for a walk or to clean his van. Having got the boys into his house he committed, so the prosecution alleged, the acts charged in the indictment. Save on count 3, it is unnecessary to go into any detail about the evidence; it suffices to say that John, Paul, Simon and Gary all alleged that the Appellant had got them on the floor face downwards, had lain on top of them, moving up and down. Kevin alleged that the Appellant had handled his penis and had asked him to do the same to him. If the boys concerned (Mark excepted) were telling the truth, as the jury must have found they were, the offences of which he was convicted were committed. At his trial the Appellant admitted that all the boys named in the indictment had been to his house; he denied that he had enticed them there for any indecent purpose and that the acts alleged had been committed by him.
The Judge in his summing-up summarised the Appellant's defence as follows:"His case is 'Yes, they all came. They come a great deal but my association with these boys was an entirely innocent association, apart from a little bit of skylarking'." After arrest the Appellant was alleged to have said to the police in relation to the boys named in counts 1 to 4:"I never committed buggery with them but I've pretended to a lot of times with some of them … I'll be fair with you and I tell you that I've played with the private parts of them all but I don't know how many times I've done it". The Appellant denied that he had said anything of the kind; but if he did, there was ample evidence capable of corroborating the evidence of four of the boys.
Counsel for the prosecution appreciated that this corroborative evidence depended upon the assessment which the jury might make of the credibility of the police officers who gave it; and by way of safeguarding his case against the possibility that the jury might reject the police evidence, he submitted to the trial Judge, so he told us, that there was other evidence which was capable of corroborating some of the evidence of the boys. It is this submission which gives rise to the main point in this appeal; but before dealing with it, we would like to dispose of a problem arising on count 3, which charged the Appellant with buggering the boy Mark. His evidence turned out to be unsatisfactory. He started by saying that he did not know the Appellant. Very much later in his evidence, on being questioned by the Judge, he admitted that he did know him. He spoke of only one act of buggery with the Appellant, but the medical evidence suggested that the condition of his anus was consistent with more than one act. The Judge seems to have been of the opinion that there was no evidence capable of corroborating Mark. He referred to the evidence of the boy Paul who had said that Mark had gone upstairs to what he called the toilet; that the Appellant had followed; and that shortly afterwards he had seen Mark leaving the toilet pulling up his trousers when the Appellant was inside. At one stage of his evidence Mark, who had spoken of acts of indecency committed on him by the Appellant as well as an act of buggery, said:"He (meaning the Appellant) did nothing to me at all". It is manifest from the summing-up that the Judge was concerned about the reliability of Mark's evidence. In our judgment the verdict on this count was unsafe and accordingly we quash it.
We turn now to the main problem which arises in this case. The nature of the charges necessitated the Judge giving the jury a direction about the need to look for corroboration of the boys' evidence. This he did in general, but, in our judgment, adequate terms. He ended his general direction by telling the jury "to look around to see whether there is corroboration". What he did not do was to specify clearly what was, and what was not, capable of being corroboration; but he made some effort in this respect. For example, he told the jury that the evidence of the police officers to which reference has already been made, was capable of being corroboration (see pages 17 BC and 19E of the transcript).
Complaint was made to us that when dealing with the evidence of John's mother as to what she had noticed about his anus, the Judge had told the jury that such evidence could be corroboration. The context in which this direction came must be examined. It was in these terms:"The evidence of (John's mother) and the evidence of the boy (Paul) can be taken as some corroboration of (John's) evidence that indecent things were done to him and in the case of (John's mother) her evidence that she saw a swelling on his bottom on one occasion can be evidence to corroborate (John's) own evidence that he was knocked about". In our judgment the Judge was not directing the jury that such evidence was capable of corroborating John's evidence so as to implicate the Appellant in the offence charged. Nevertheless, in our judgment, the direction of the Judge could have been clearer as to what evidence was, and what was not, capable of being corroboration; but we do not consider that the lack of clarity was sufficiently grave to make the verdict unsafe or unsatisfactory on that ground.
More fundamental was the submission that the Judge had misdirected the jury by telling them that they could regard the evidence of the boys Gary and Kevin, who had given evidence about what had been done to them in the autumn of 1971, as corroboration of the evidence of the boys John, Paul, Mark and Simon, whose evidence related to the autumn of 1970, and vice versa. The first matter to be decided is whether the Judge did so direct the jury.
The passage which is said to be a direction to this effect was in these terms:"You would be entitled to take the evidence of (Kevin) and (Gary), or either of them, if you think that their evidence is true as to what was done to them by the accused and you would be entitled to take this view of it, 'Well, we can use the evidence of (Kevin) and (Gary) or either of them' if you accept it as reliable, 'as supporting evidence given by the boys in the first group', but what you must not do is to use the evidence of John as to what was done to him to reinforce the evidence of another boy in the first group, (Paul) for example, as to what was done to him. You can use the evidence of the first group, if you accept it, in weighing up the evidence of (Gary) amd (Kevin). You can use the evidence of (Gary) and (Kevin), or either of them, if you accept it, in weighing up the evidence in the first group". The reason why the Judge differentiated between the two groups was because the boys in each group knew each other well and could have collaborated in putting forward their stories whereas it was unlikely, if not impossible, that the two groups could have got together to tell false stories or to embellish true stories with accusations of indecencies.
Each member of this Court, on reading the transcript of the summing-up before coming into Court, had construed the passage just quoted as a direction upon corroboration. Counsel for the Crown submitted that it should not be read as such but as a direction that the evidence of each group could properly be considered when dealing with the counts relating to the other group. This may be what the Judge intended but in our judgment it is probable that the jury...
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R v H (1995)
...evidence in relation to one offence is admissible in respect of another." 17Here I was dealing with the nature of the relationship. In Reg. v. Kilbourne [1973] A.C. 729, 758 Lord Simon of Glaisdale put the matter thus: "Once it is accepted that the direct evidence on one count is relevant t......
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R v H (1995)
...evidence in relation to one offence is admissible in respect of another." 17Here I was dealing with the nature of the relationship. In Reg. v. Kilbourne [1973] A.C. 729, 758 Lord Simon of Glaisdale put the matter thus: "Once it is accepted that the direct evidence on one count is relevant t......
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R v H (1995)
...evidence in relation to one offence is admissible in respect of another." 17Here I was dealing with the nature of the relationship. In Reg. v. Kilbourne [1973] A.C. 729, 758 Lord Simon of Glaisdale put the matter thus: "Once it is accepted that the direct evidence on one count is relevant t......
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R v H (1995)
...evidence in relation to one offence is admissible in respect of another." 17Here I was dealing with the nature of the relationship. In Reg. v. Kilbourne [1973] A.C. 729, 758 Lord Simon of Glaisdale put the matter thus: "Once it is accepted that the direct evidence on one count is relevant t......