R v M(J)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE KAY |
| Judgment Date | 21 November 1995 |
| Judgment citation (vLex) | [1995] EWCA Crim J1121-5 |
| Docket Number | No. 95/5811/Z5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 November 1995 |
[1995] EWCA Crim J1121-5
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Kay and Mr Justice Brian Smedley
No. 95/5811/Z5
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR ROBIN PEARSE WHEATLEY appeared on behalf of THE APPELLANT
MRS REBECCA S POULET QC appeared on behalf of THE CROWN
Tuesday 21 November 1995
THE LORD CHIEF JUSTICEMr Justice Kay will give the judgment of the court.
MR JUSTICE KAY: On 6 August 1993, in the Central Criminal Court, before His Honour Judge Grigson, the appellant was convicted of two counts of rape, one of attempted rape and three of indecent assault. He was sentenced to a total of nine years imprisonment. He now applies for an extension of time in which to give notice of appeal against conviction by way of certificate of the trial judge. The period is a very long one, two years and two days. The terms of the certificate are as follows:
"In a case involving a child witness as defined by rule 23 of the Crown Court Rules 1982, the evidence-in-chief of the witness having been admitted in the form of a video-recorded interview under section 32A(2) of the Criminal Justice Act 1988 (as amended by section 54 of the Criminal Justice Act 1991) whether the learned judge was wrong to order/permit the video—recorded interview to be played to the jury again at the close of the defence case and whether the second playing of the video tape amounted to a material irregularity in the course of the trial."
The reasons for the delay do not need to be gone into in detail, but they involved circumstances in which it became necessary in the end for counsel who appears for the applicant to report the solicitor who was then acting for the applicant to the Law Society for failing to make sure that the Notice of Appeal had been lodged with the court. We do not go into any of the matters surrounding that because it is sufficient to say that we are satisfied that this is a proper case in which to extend the period for filing the Notice of Appeal and we do so.
The facts that give rise to the appeal can shortly be stated. The matters involved a girl 'G', who was the daughter of the appellant's cohabitee, Mrs Davies. In the same household there lived other members of the family. The appellant and Mrs Davies had met sometime in 1989 and began living together about six months afterwards. 'G' herself had, in the past, been to a school for autistic children. At the time of her complaint, in February 1993, she was considered possibly borderline autistic by her school, but not in need of special needs assistance.
After seeing a video film about child sexual abuse at school she told a school friend that she had been abused by her stepfather. Shortly afterwards on 3 February 1993 she told her mother.
A video-taped interview with 'G' was recorded on 5 February. That video was admitted as her examination-in-chief at the trial and is at the centre of the principal ground of appeal.
It is not necessary to go into the detail of the various sexual allegations that were made, save in so far as they concern one count of indecent assault, which was count 5. The allegation made by the girl was that the appellant had taken her to an abandoned garage. Oral sex had occurred inside the car on that occasion and they had remained out and stayed away from the home until 3.00am. During that time Mrs Davies had called the police because she had become worried about her daughter. That 'phone call enabled the occasion to be fixed because it was made at 1.07 am on 27 October 1992.
Upon her return home the girl told her mother that she had been visiting the appellant's cousin. She said, in the course of the video, that she had done that because the appellant had threatened her.
The defence case was a denial that any sexual misconduct of any kind had occurred. The appellant gave evidence. He described the girl as being "mental". He said that she behaved badly and would walk up and down and scream. His evidence was that there had only ever been one occasion on which he had been out with her on his own. That was the occasion on 26 October 1992 when he said he had gone to an off—licence and 'G' had asked to go with him. On the spur of the moment he decided to visit a friend, Johny Lincoln, who lived near to the off-licence. They had stayed there until 2.15am. He said that he had told Mrs Davies that he had been at his cousin's house rather than the truth because he thought that would pacify her.
Johny Lincoln's full name, it emerged, was John Lincoln Ebanks. He gave evidence and said that the appellant had visited on a night that October. His account of the events of that evening was similar to that of the appellant.
The trial started on 26 July 1993. On that day the jury were empanelled and they were then sent away whilst legal argument was heard. The argument included a submission that the evidence contained in the video should be excluded by the judge in the exercise of his discretion under section 78 of the Police and Criminal Evidence Act 1984. During the course of that hearing evidence was given by witnesses who had been present at the making of the video (although not the girl). It was made clear during the course of cross-examination that there was a challenge as to the manner in which the interview had been conducted. It was not until 28 July that those matters were resolved and the learned judge ruled the evidence to be admissible. An application was then made that defence counsel should be permitted to address the jury before the playing of the video so as to alert the jury to the nature of the allegations that would be made about the way in which the interview had been conducted. The learned judge declined to allow such an address, but briefly warned the jury himself what it was that the defence suggested that they should be looking out for as they listened to the video. Unfortunately we have not seen a transcript of this part of the case and therefore have to rely on that brief description.
After the video had been shown, the girl was cross-examined, giving her evidence from behind a screen. Few questions were addressed to her as to the criticism that was being made concerning the method of the interview.
On the following Monday, 2 August, the woman police constable who had conducted the interview gave evidence and the allegations were then put to her in detail. They included suggestions that she had asked inappropriate leading questions and that she had continuously prompted the girl as to the answer that was required. It was also suggested that there had been a number of respects in which the guidance that had been given pursuant to the Cleveland Inquiry had been followed. It is clear that at this stage the learned judge became concerned as to whether the jury were able to follow this detailed cross-examination. He and counsel had the benefit of a transcript of the video, but the jury did not. The matter was raised with counsel and consideration of the problem was adjourned overnight for counsel to reflect on it. The next morning it was submitted on behalf of the prosecution that the appropriate way of dealing with the situation would be to permit the replaying of the video during the course of the re-examination of the woman police constable. Again we have no transcript of what was said either by counsel or by the judge at that stage. We only know for certain that the conclusion of the judge was that the video should be replayed but that this should happen not in re-examination but instead immediately before counsel made their final speeches. Without a transcript it is difficult to be certain of the learned judge's reasoning, but it seems likely from that which he said later on that he had in mind that both counsel would be referring to the video in their submissions to the jury and he thought it sensible that the jury should have the replaying fresh in their minds as they listened to counsel's speeches.
The case therefore proceeded in that way. At the conclusion of the prosecution case, and after a submission of 'no case' had been rejected, the appellant and his witnesses gave evidence. Following the conclusion of the defence case the video was replayed in full to the jury. Once again we have no transcript as to what the trial judge said to the jury at that point in time by way of explanation for the course that was being taken but we know that he told the jury that if they required to see the video again they could ask for it to be replayed yet again. As it turned out the jury made no such request. The case thereafter followed the normal pattern. The learned judge summed the case up to the jury very carefully and very fairly, but he made no further reference to the second playing of the video, although he gave exemplary directions on the approach they should adopt to the fact that the evidence was on video rather than given in person. It will be necessary to return later to one specific complaint about a direction that was given in relation to lies being capable of being corroboration in respect of count 5.
The principal ground of appeal relates to the playing of the video for the second time. Three separate criticisms are made. First, it is submitted that it was wrong to replay the video at all otherwise than at the specific request of the jury. Secondly, even assuming that it was right that it should be replayed, it is contended that the point of the trial at which this was done was the wrong time for it to happen. Thirdly, it is argued that if the video was to be replayed warnings should have been given in relation...
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